M&A Boot Camp booklet 2023 - Flipbook - Page 131
(b) Parachute Payments. As promptly as practicable after the execution of this Agreement, the Company shall submit to the
stockholders of the Company (in a manner satisfactory to Parent) for approval by such number of stockholders of the Company as is
required by the terms of Section 280G(b)(5)(B) of the Code a written consent in favor of a single proposal to render the parachute payment
provisions of Section 280G of the Code and the Treasury Regulations thereunder (collectively, “Section 280G”) inapplicable to any and all
payments and/or benefits provided pursuant to Company Employee Plans, Company Employee Agreements or other Contracts that might
result, separately or in the aggregate, in the payment of any amount and/or the provision of any benefit that would not be deductible by
reason of Section 280G or that would be subject to an excise tax under Section 4999 of the Code (together, the “Section 280G Payments”).
Any such stockholder approval shall be obtained in a manner which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code
and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations. The Company agrees that: (i) in
the absence of such stockholder approval, no Section 280G Payments shall be made; and (ii) prior to the distribution to the Company’s
stockholders of the written consent described above, the Company shall deliver to Parent waivers duly executed by each Person who might
receive any Section 280G Payment. The form and substance of all stockholder approval documents contemplated by this Section 5.2(b),
including the waivers, shall be subject to the review and approval of Parent.
5.3 Public Announcements. From and after the date of this Agreement, except as expressly contemplated by this Agreement, the Company
shall not (and the Company shall ensure that none of its Representatives) issue any press release or make any public statement regarding (or
otherwise disclose to any Person the existence or terms of) this Agreement or the Merger or any of the other transactions or documents
contemplated by this Agreement, without Parent’s prior written consent. During the Pre-Closing Period, except as expressly contemplated by this
Agreement, Parent will use its best efforts to consult with the Company prior to issuing any press release or making any public statement
regarding this Agreement or the Merger, or regarding any of the other transactions contemplated by this Agreement.
5.4 Commercially Reasonable Efforts. Prior to the Closing: (a) the Company shall use all commercially reasonable efforts to cause the
conditions set forth in Section 6 to be satisfied on a timely basis; and (b) Parent and Merger Sub shall use all commercially reasonable efforts to
cause the conditions set forth in Section 7 to be satisfied on a timely basis.
5.5 Employee Benefits.
(a) Parent shall, to the extent permitted under Parent’s employee benefit plans and programs, use commercially reasonable efforts to:
(a) credit the employees of the Company who become employees of Parent as of the Closing (“Continuing Employees”) for their past service
with the Company for purposes of eligibility and vesting under Parent’s 401(k), medical, vision and dental plans (except to the extent such
service credit will result in benefit accruals or the duplication of benefits); and (b) grant the Continuing Employees service credit for
purposes of Parent’s vacation leave policy.
(b) Parent shall ensure that any payments required to be made pursuant to the Maple Incentive Bonus Plan are made on a timely basis
in accordance with the terms of the plan document.
5.6 Communications with Employees. Prior to the Closing Date, the Company shall not (and the Company shall ensure that none of its
Representatives) communicate with Company Employees regarding post-Closing employment matters with Parent or any Subsidiary or affiliate of
Parent, including post-Closing employee benefit plans and compensation, without the prior written approval of Parent.
41.