Solicitation of 280G Approval. Prior to the Closing, the Company shall solicit a Section 280G parachute payment waiver from each Person listed on Schedule 6.6 who will receive a 280G Payment (as defined below) (each such Person who signs such waiver, a “Waiving Disqualified Individual”). To the extent that there are any Waiving Disqualified Individuals, then, no later than one Business Day prior to the Closing, the Company shall submit to the Company Stockholders for approval (in a manner intended to comply with the approval procedures set forth in Section 280G of the Code and the regulations thereunder, subject to the reasonable review and approval by Parent), by such number of Company Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payment and/or benefits to be received by such Waiving Disqualified Individuals that may, separately or in the aggregate, constitute “parachute payments” pursuant to Section 280G of the Code (including payments and benefits to be provided by Parent and its Affiliates only to the extent such payments and such benefits have been communicated to the Company as of the date hereof) (“280G Payments”) (which determination shall be made by the Company and shall be subject to review and approval by Parent (such approval not to be unreasonably withheld, conditioned or delayed)), such that all such payments and benefits shall not be deemed to be 280G Payments, and prior to the Closing, the Company shall deliver to Parent evidence reasonably satisfactory to Parent that a Company stockholder vote on behalf of the Waiving Disqualified Individuals was solicited in conformance with Section 280G and the regulations promulgated thereunder (the “280G Approval”) and that (i) such requisite 280G Approval was obtained with respect to any payments or benefits that were subject to the stockholder vote, or (ii) that the 280G Approval was not obtained and as a consequence, that such payments or benefits shall not be made or provided to the extent they would cause any amounts to constitute 280G Payments, pursuant to the waivers of those payments or benefits, which were executed by the Waiving Disqualified Individuals prior to the vote of the Company Stockholders pursuant to this Section 6.6.
Solicitation of 280G Approval. (c) Promptly following the execution of this Agreement (but in no event later than the fifth business day immediately prior to the Closing Date), the Company shall, and shall cause each of its Subsidiaries to, obtain from each Person who is a “disqualified individual” (as defined in Treasury Regulation Section 1.280G-1) with respect to the Company and to whom any payment or benefit is required or proposed to be paid or provided that could constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code) a written agreement waiving such Person’s right to receive some or all of such payment or benefit (the “Waived Benefit”) so that all remaining payments or benefits applicable to such Person shall not be deemed to be a parachute payment that would not be deductible under Section 280G of the Code, and accepting in substitution for the Waived Benefit the right to receive an amount equal to the Waived Benefit only if approved by the Company’s stockholders in a manner that complies with Section 280G(b)(5)(B) of the Code. Each such waiver shall identify (either directly or through incorporation by reference) the specific Waived Benefit and shall provide that if such approval of the Company’s stockholders is not obtained, such payment or benefit shall not be paid or provided and such Person shall have no right or entitlement with respect thereto. The determination of which payments or benefits may be deemed to constitute parachute payments and the form of each such waiver shall be subject to review and approval by the Parent.
Solicitation of 280G Approval. (a) Promptly following the execution of this Agreement and prior to the Closing Date, the Company shall submit to the Company Stockholders for approval by such number of Company Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits, if any, that may separately or in the aggregate, constitute “excess parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder) (“Section 280G Payments”), such that such payments and benefits shall not be deemed to be “excess parachute payments” under Section 280G of the Code, and, if applicable, prior to the Effective Time the Company shall deliver to Parent evidence satisfactory to Parent (i) that a Company Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder, and, if applicable, the requisite Company Stockholder approval was obtained with respect to any payments and/or benefits that were subject to the Company Stockholder vote (the “280G Approval”), or (ii) that the 280G Approval was not obtained and as a consequence, that such “excess parachute payments” shall not be made or provided. Notwithstanding the foregoing, the transactions contemplated by this Agreement and the Closing shall not be subject to the Company obtaining such Company Stockholder approval.
