Common use of 280G Approvals Clause in Contracts

280G Approvals. Prior to the Closing, the Company shall use its reasonable best efforts to obtain and deliver to Parent a 280G Waiver from each Person who Parent reasonably believes is, with respect to the Company or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), who might otherwise receive or have the right or entitlement to receive a “parachute payment” under Section 280G of the Code, unless the Stockholders approve such payment in accordance with the terms of this section. Prior to the Closing, and following the delivery of all required 280G Waivers, the Company shall submit to the Stockholders for approval (in a form and manner satisfactory to Parent) as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that Parent determines may separately or in the aggregate, constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), such that such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code. Prior to the Closing the Company shall deliver to Parent evidence satisfactory to Parent that a Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder and that (i) the requisite Stockholder approval was obtained with respect to any payments and/or benefits that were subject to the Stockholder vote (the “280G Approval”), or (ii) that the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, pursuant to the 280G Waivers.

280G Approvals. Prior to the Closing, the The Company shall solicit (and use its commercially reasonable best efforts to obtain and deliver to Parent obtain) a written 280G Waiver waiver, each in a form reasonably acceptable to Buyer (the “280G Waiver”), from each Person who Parent reasonably believes is, with respect to the Company or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), Code) who might otherwise receive or have the right or entitlement would reasonably be expected to receive a any payments and/or benefits in connection with the Merger that may constitute “parachute paymentpayments” under (within the meaning of Section 280G of the Code) (collectively, unless the Stockholders approve such payment in accordance with the terms of this section“280G Persons”). Prior The Company, prior to the ClosingEffective Time, and following the delivery of all required 280G Waivers, the Company shall submit to the Stockholders Company Shareholders for approval (in a form and manner reasonably satisfactory to Parent) Buyer), by such number of Company Shareholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits to be paid or provided to any “disqualified individual” that Parent determines previously executed a 280G Waiver that may separately or in the aggregate, constitute “parachute payments” (within which determination shall be made by the meaning of Section 280G of the Code Company and the regulations promulgated thereundershall be subject to reasonable review and approval (which approval shall not be unreasonably withheld, conditioned or delayed) by Buyer), such that such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code. Prior to the Closing Effective Time the Company shall deliver to Parent Buyer evidence reasonably satisfactory to Parent Buyer that (i) a Stockholder Company Shareholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder and that (i) the requisite Stockholder Company Shareholders approval was obtained with respect to any payments and/or benefits that were subject to the Stockholder Company Shareholder vote (the “280G Approval”), or (ii) that the 280G Approval was not obtained and as a consequence, that any such “parachute payments” pursuant to which a 280G Waiver was executed shall not be made or provided, pursuant to such 280G Waiver. The form and substance of all Company Shareholder approval documents contemplated by this Section 7.1(b), including the 280G Waivers, shall be submitted to Buyer at least three (3) days before submission to the disqualified individuals or stockholders, as applicable, for review and reasonable approval of Buyer, which will not be unreasonably withheld, conditioned or delayed.

280G Approvals. Prior to the Closing, the The Company shall use its reasonable best efforts to obtain and deliver to Parent a waivers by any “disqualified individuals” within the meaning of Section 280G Waiver from each Person who Parent reasonably believes isof the Code of any payments and/or benefits that may separately or in the aggregate, with respect to the Company or any ERISA Affiliate, a constitute “disqualified individualparachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), who might otherwise receive or have thereunder (which determination shall be made by the right or entitlement Company and shall be subject to receive a review and approval by Acquiror) (“parachute payment” under Section 280G of the CodePayments”) and, unless the Stockholders approve such payment in accordance with the terms of this section. Prior to the Closing, and promptly following the delivery of all required 280G Waiversdate hereof, the Company shall submit to the Stockholders for approval (in a form and manner reasonably satisfactory to Parent) Acquiror), by such number of Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits Code such that Parent determines may separately or in the aggregate, constitute “parachute payments” (within the meaning of such Section 280G of the Code and the regulations promulgated thereunder), such that such payments and benefits Payments shall not be deemed to be “parachute payments” under Section 280G of the Code. Prior to the Closing Effective Time the Company shall deliver to Parent Acquiror evidence reasonably satisfactory to Parent Acquiror that (i) a Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder and that (i) the requisite Stockholder approval was obtained with respect to any payments and/or benefits that were subject to the Stockholder vote (the “280G Approval”), or (ii) that the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, pursuant to the a 280G Waiverswaiver, each in the form attached hereto as Exhibit E (the “280G Waiver”), entered into by each Person who otherwise might receive any payments and/or benefits in connection with the Merger that constitute “parachute payments” within the meaning of Section 280G of the Code that waived any right or entitlement to such payments and/or benefits so that such payment and benefits do not constitute “parachute payments” thereunder.

280G Approvals. Prior to the ClosingClosing Date, the Company shall use its reasonable best efforts to obtain and deliver to Parent a 280G Waiver from each Person who Parent reasonably believes is, with respect to the Company or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), who might otherwise receive or have the right or entitlement to receive a “parachute payment” under Section 280G of the Code, unless the Stockholders approve such payment in accordance with the terms of this section. Prior to the Closing, and following the delivery of all required 280G Waivers, the Company Seller shall submit to the Stockholders stockholders of the Seller for approval (in a form and manner satisfactory to Parent) Buyer), by such number of stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that Parent determines may separately or in the aggregate, constitute “parachute payments” (which determination shall be made by Seller and shall be subject to review and approval by Buyer, such approval not to be unreasonably withheld, conditioned or delayed) (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), such that such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the CodeCode (the “280G Solicitations”). Prior to the Closing the Company Closing, Seller shall deliver to Parent Buyer evidence satisfactory to Parent Buyer that (i) a Stockholder stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder and that (i) the requisite Stockholder stockholder approval was obtained with respect to any payments and/or benefits that were subject to the Stockholder Seller Securityholder vote (the “280G Approval”), or (ii) that the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, provided pursuant to the 280G WaiversWaivers executed by the affected individuals prior to the 280G Solicitations. Buyer shall timely provide to Seller the terms and conditions and related documents governing any new compensatory agreements or arrangements to be entered into with any affected individuals taking effect on or after the Closing.

280G Approvals. Prior to the Closing, the Company shall use its reasonable best efforts to obtain and deliver to Parent a 280G Waiver from each Person who Parent reasonably believes is, with respect to the Company or and/or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), and who might otherwise have, receive or have the right or entitlement to receive a receive, separately or in the aggregate, “parachute paymentpayments” under (within the meaning of Section 280G of the CodeCode and regulations promulgated thereunder), pursuant to which each such Person shall agree, unless the Stockholders approve 280G Approval (as defined below) has been obtained in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, to waive any and all right or entitlement to such payment “parachute payments” and each such 280G Waiver shall remain in accordance with the terms of this section. Prior effect immediately prior to the Closing, and following the delivery of all required 280G Waivers, the Effective Time. The Company shall submit to the Stockholders for approval (in a form and manner satisfactory to Parent) ), by such number of Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that Parent determines may separately or in the aggregate, constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder)”, such that such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code. Prior to the Closing Effective Time, the Company shall deliver to Parent evidence satisfactory to Parent that (i) a Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder and that (i) the requisite Stockholder approval was obtained with respect to any payments and/or benefits that were subject to the Stockholder vote (the “280G Approval”), or (ii) that the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, pursuant to the 280G Waiverswaivers of those payments and/or benefits which were executed by the affected individuals on the date of this Agreement.

280G Approvals. Prior No less than five Business Days prior to the Closing, the Company shall (i) use its commercially reasonable best efforts to obtain and deliver to Parent a 280G Waiver prior to the initiation of the requisite stockholder approval procedure under clause (ii) hereof from each Person who Parent reasonably believes is, with respect to the Company or any ERISA AffiliateCompany, a “disqualified individual” (within the meaning of Section 280G of the Code and Code) as of immediately prior to the regulations promulgated thereunderinitiation of such requisite stockholder approval procedure (each, a “Disqualified Individual”), and who reasonably might otherwise receive or have the right or entitlement to receive a or retain an “excess parachute payment” under (within the meaning of Section 280G of the Code), unless the Stockholders approve a 280G Waiver, in a form reviewed and approved by Parent (such payment in accordance with the terms of this section. Prior review and approval not to the Closingbe unreasonably withheld, conditioned or delayed), and following (ii) with respect to each Disqualified Individual from which the delivery of all required Company has obtained an executed 280G WaiversWaiver, the Company shall submit to the Stockholders for approval (in a form and manner satisfactory to Parent) ), by such Stockholders as is required by will together satisfy the terms stockholder approval requirements of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that Parent determines may separately or in the aggregate, constitute “parachute payments” (which determination shall be made by the Company and shall be subject to review and approval by Parent) (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), such that such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the CodeCode (the “280G Solicitations”). Prior to the Closing First Effective Time, the Company shall deliver to Parent evidence satisfactory to Parent that (X) a Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder and that (i) the requisite Stockholder approval was obtained with respect to any payments and/or benefits that were subject to the Stockholder vote (the “280G Approval”), or (iiY) that the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, pursuant to the 280G WaiversWaivers executed by the affected individuals prior to the 280G Solicitations.

280G Approvals. Prior If required to avoid the Closing, imposition of Taxes under Section 4999 of the Company shall use its reasonable best efforts to obtain and deliver to Parent a 280G Waiver from each Person who Parent reasonably believes is, with respect to Code or the Company or any ERISA Affiliate, a “disqualified individual” (within the meaning loss of deduction under Section 280G of the Code and the regulations promulgated thereunder), who might otherwise receive with respect to any payment or have the right or entitlement to receive a “parachute payment” under Section 280G benefit in connection with any of the Code, unless the Stockholders approve such payment in accordance with the terms of transactions contemplated by this section. Prior to the Closing, and following the delivery of all required 280G WaiversAgreement, the Company shall submit (i) use commercially reasonable efforts to the Stockholders for approval (in obtain from each Person who has a form and manner satisfactory right to Parent) as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that Parent determines may separately or in the aggregate, could reasonably be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code and Code) a waiver, subject to the regulations promulgated thereunderapproval described in clause (ii), of such Person’s rights to such parachute payments (the “Waived 280G Benefits”) so that all remaining payments and/or benefits applicable to such payments and benefits shall Person do not be deemed to be constitute “excess parachute payments” (within the meaning of Section 280G of the Code) that would not be deductible under Section 280G of the Code and (ii) solicit the approval by the Stockholders, to the extent and in a manner that complies with, Section 280G(b)(5)(B) of the Code, of any Waived 280G Benefits and any “excess parachute payments” for which a waiver is not required. Prior to seeking such waivers, and prior to soliciting such Stockholder approval, the Company shall provide drafts of such waivers and such Stockholder approval materials to Purchaser for its review no fewer than three (3) days prior to seeking such approval and shall consider Purchaser’s timely comments in good faith. Prior to the Closing Closing, the Company shall deliver to Parent evidence satisfactory to Parent Purchaser written documentation that a Stockholder vote either (x) the approval by the Stockholders was solicited in conformance conformity with Section 280G 280G(b)(5)(B) of the Code, and the regulations promulgated thereunder and that (i) requisite approval by the requisite Stockholder approval Stockholders was obtained with respect to any payments and/or benefits that were subject to the Stockholder vote (the “280G Approval”)obtained, or (iiy) that the 280G Approval approval by the Stockholders was not obtained and that, as a consequence, that such “parachute payments” the Waived 280G Benefits shall not be made or provided. Notwithstanding the foregoing, pursuant this Section 7.8 shall not be breached by reason of any “excess parachute payments” that occur (or could occur) due to any arrangements entered into by or at the 280G Waiversrequest of Purchaser, other than the Option Surrender Agreements and the Consulting Agreement.