Common use of 280G Cooperation Clause in Contracts

280G Cooperation. The Company will, prior to the Closing Date, (a) use commercially reasonable efforts to obtain from each “disqualified individual” (as defined in Section 280G(c) of the Code) a waiver by such individual of any and all payments (or other benefits) contingent on the consummation of the transactions contemplated by this Agreement (within the meaning of Section 280G(b)(2)(A)(i) of the Code) to the extent necessary so that such payments and benefits would not be “excess parachute payments” under Section 280G of the Code and (b) to the extent one or more waivers described in Section ‎6.8(a) are obtained, submit to its stockholders for a vote all such waived payments in a manner such that, if such vote is approved by the stockholders in a manner that satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the Code and regulations promulgated thereunder (the “280G Stockholder Approval Requirements”), such waived payments will not constitute a “parachute payments” under Section 280G of the Code; provided, that in no event will this Section ‎6.8 be construed to require the Company to compel any Person to waive any existing rights under any contract or agreement that such Person has with the Company and in no event will the Company be deemed in breach of this Section ‎6.8 if any such Person refuses to waive any such rights. Buyer shall provide to the Company, no less than fifteen (15) days prior to the Closing Date, any arrangements entered into at the direction of Buyer or between Buyer and its Affiliates, on the one hand, and a disqualified individual (provided the Company has provided the Buyer with a list of all such disqualified individuals at least five (5) days prior to such date), on the other hand (“Buyer Arrangements”) and the Company and Buyer shall cooperate in good faith with respect to calculating the value of such arrangements.

280G Cooperation. The Company will, prior to the Closing Date, (a) use commercially reasonable efforts to obtain from each “disqualified individual” (as defined in Section 280G(c) of the Code) a waiver by such individual of any and all payments (or other benefits) contingent on the consummation of the transactions contemplated by this Agreement (within the meaning of Section 280G(b)(2)(A)(i) of the Code) to To the extent necessary so that such payments and benefits would not be “excess parachute payments” under to avoid the application of Section 280G of the Code and the applicable final Treasury regulations and rulings thereunder, as soon as reasonably practicable following the date of this Agreement, but in no event later than five (b5) Business Days prior to the Closing Date, the Company shall (i) obtain waivers from each Person who has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated by this Agreement that would reasonably be expected to constitute “parachute payments” within the meaning of Section 280G of the Code and as to which such Person waives his or her rights to some or all of such payments and/or benefits (the “Waived 280G Benefits”) applicable to such Person so that all remaining payments and/or benefits applicable to such Person shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G of the Code), and (ii) following the execution of the waivers described in clause (i), solicit the approval of the Stockholders to the extent one or more waivers described in Section ‎6.8(a) are obtained, submit to its stockholders for a vote all such waived payments in a manner such that, if such vote is approved by the stockholders in a manner that satisfies the stockholder approval requirements required under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits pursuant to a vote intended to meet the requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder thereunder, and that shall be in a form reasonably satisfactory to Parent. To the extent any of the Waived 280G Benefits are not approved by the Stockholders as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholders was solicited in accordance with the foregoing provisions of this Section 6.12 and that either (A) the requisite number of votes were obtained with respect to the Waived 280G Benefits (the “280G Stockholder Approval RequirementsApproval”), such waived payments will not constitute a “parachute payments” under Section or (B) that the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made or provided. The Company shall provide Parent and its representatives, with a copy of the Code; providedsuch waiver and disclosure statement within a reasonable time prior to, that in no event will this Section ‎6.8 be construed to require the Company to compel any Person to waive any existing rights under any contract or agreement that such Person has with the Company and in no event will the Company be deemed in breach of this Section ‎6.8 if any such Person refuses to waive any such rights. Buyer shall provide to the Company, no less later than fifteen (15) days prior to the Closing Date, any arrangements entered into at the direction of Buyer or between Buyer and its Affiliates, on the one hand, and a disqualified individual (provided the Company has provided the Buyer with a list of all such disqualified individuals at least five (5) days Business Days prior to, delivery to the “disqualified individuals” and the Stockholders of the Company of such date)waiver and disclosure statement, on the other hand (“Buyer Arrangements”) respectively, and the Company and Buyer shall cooperate consider in good faith any changes reasonably requested by Parent or its representative to such disclosure statement and waiver. As soon as practicable following the date hereof and no later than ten (10) Business Days prior to the First Effective Time, the Company shall provide Parent or its representatives with respect the calculations and related documentation required to calculating determine whether the value vote described in this Section 6.12 is necessary in order to avoid the imposition of such arrangementsTaxes under Section 4999 of the Code.

280G Cooperation. The Company will, (a) As soon as reasonably practicable following the execution of this Agreement but in any case no later than thirty (30) Business Days prior to the Closing Date, Xxxxxxxx HoldCo shall provide to HEP and HEP’s advisors, for their reasonable review and comment, its preliminary analysis (a“Section 280G Analysis”) use commercially reasonable efforts to obtain from each “disqualified individual” (as defined in Section 280G(c) regarding the application of the Code) a waiver by such individual of any and all payments (or other benefits) contingent on the consummation of the transactions contemplated by this Agreement (within the meaning of Section 280G(b)(2)(A)(i) of the Code) to the extent necessary so that such payments and benefits would not be “excess parachute payments” under Section 280G of the Code and the regulations promulgated thereunder (“Section 280G”) in connection with the Contemplated Transactions (either alone or in combination with any other additional or subsequent event, including a termination of employment) to each Person who is determined by Xxxxxxxx HoldCo to be a “disqualified individual” within the meaning of Section 280G (each such Person, a “280G Disqualified Individual”). No later than fifteen (15) Business Days prior to the Closing Date, Xxxxxxxx HoldCo shall provide to HEP and HEP’s advisors, for their reasonable review and comment, its final Section 280G Analysis. (b) Xxxxxxxx HoldCo shall (i) use commercially reasonable efforts to obtain, prior to the solicitation of the 280G Approval (as defined below), a waiver agreement from each 280G Disqualified Individual who could otherwise receive or retain or have the right or entitlement to receive or retain any “parachute payment” within the meaning of Section 280G, waiving any and all rights or entitlements to receive or retain any such payment to the extent one that the value thereof (determined in accordance with Section 280G) equals or more waivers described exceeds three times such Person’s “base amount” (within the meaning of and determined in accordance with Section ‎6.8(a280G), unless the 280G Approval is obtained (each such waiver agreement, a “280G Waiver”); provided that a “disqualified individual’s” election not to execute a 280G Waiver despite Xxxxxxxx HoldCo’s commercially reasonable efforts to obtain such waiver will not, by itself, constitute a breach of this Section 6.7, and (ii) are obtained, submit following the execution of the 280G Waivers by any applicable “disqualified individuals,” solicit and take commercially reasonable efforts to its stockholders for a vote all obtain any necessary stockholder approval of any such payments or benefits so waived payments in a manner such that, if such vote is approved by the stockholders in a manner that satisfies is intended to satisfy all the stockholder approval requirements under of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder (the “280G Stockholder Approval RequirementsApproval”), ; provided that the stockholders’ failure to approve such waived payments and benefits pursuant to the 280G Approval despite Xxxxxxxx HoldCo’s commercially reasonable efforts to obtain such 280G Approval will not not, by itself, constitute a “parachute payments” under Section 280G of the Code; provided, that in no event will this Section ‎6.8 be construed to require the Company to compel any Person to waive any existing rights under any contract or agreement that such Person has with the Company and in no event will the Company be deemed in breach of this Section ‎6.8 if any such Person refuses 6.7. (c) No later than ten (10) Business Days prior to waive any such rights. Buyer soliciting the 280G Waivers as provided above, Xxxxxxxx HoldCo shall provide to HEP and HEP’s advisors drafts of the Companystockholder approval materials (including Section 280G Waivers, no less than fifteen disclosure and consent documentation) for their reasonable review and comment (15) days prior to the Closing Date, any arrangements entered into at the direction of Buyer or between Buyer and its Affiliates, on the one hand, and a disqualified individual (provided the Company has provided the Buyer with a list of all which such disqualified individuals at least five (5) days prior to such date), on the other hand (“Buyer Arrangements”) and the Company and Buyer comments shall cooperate be considered in good faith with respect to calculating the value of by Xxxxxxxx HoldCo for incorporation into such arrangementsdocumentation).

280G Cooperation. The Company will, no later than two (2) Business Days prior to the Closing Date, (a) use commercially reasonable efforts to seek to obtain from each “the shareholder approval in accordance with Section 280G(b)(5)(B) of the Code and the regulations promulgated pursuant thereto such that payments or benefits to be received or retained by any "disqualified individual” " (as defined in Treasury Regulation Section 280G(c1.280G-1) arising in whole or in part as a result of or in connection with the Code) a waiver by such individual of any and all payments (or other benefits) contingent on the consummation of the transactions contemplated by this Agreement (within the meaning of Section 280G(b)(2)(A)(i) of the Code) to the extent necessary so that such payments and benefits would Transactions should not be “characterized as "excess parachute payments” " under Section 280G of the Code and Code. No later than one (b1) Business Day prior to seeking such shareholder approval, the Company will request waivers from such "disqualified individuals," which waivers shall provide that unless such payments or benefits are approved by the shareholders of the Company to the extent one or more waivers described in Section ‎6.8(a) are obtained, submit to its stockholders for a vote all such waived payments in a and manner such that, if such vote is approved by the stockholders in a manner that satisfies the stockholder approval requirements prescribed under Section 280G(b)(5)(B) of the Code and regulations promulgated thereunder (the “280G Stockholder Approval Requirements”)in a form reasonably acceptable to Buyer, such waived payments will or benefits shall not constitute a “parachute payments” under Section 280G of the Codebe made; provided, provided that in no event will this Section ‎6.8 5.06 be construed to require the Company to compel any Person to waive any existing rights under any contract or agreement that such Person has with the Company or any Subsidiary thereof and in no event will the Company be deemed in breach of this Section ‎6.8 5.06 if any such Person refuses to waive any such rightsrights provided that the Company otherwise complies with the provisions of this Section 5.06. Buyer The parties acknowledge that this Section 5.06 shall provide not apply to the Company, no less than fifteen (15) days prior to the Closing Date, any arrangements entered into at the direction of Buyer or its Affiliates or between Buyer and and/or its Affiliates, on the one hand, and a disqualified individual (provided the Company has provided the Buyer with a list of all such disqualified individuals at least five (5) days prior to such date), on the other hand (“the "Buyer Arrangements”") unless the Buyer provides to the Company, no less than ten (10) Business Days prior to the Closing Date, a written description of any Buyer Arrangements, and in such case, the Company and shall include such description in any materials disclosed to holders of Common Stock in connection with soliciting approval in accordance with this Section 5.06; provided, however, that for purposes of compliance with this Section 5.06, the Company may rely solely on the information (if any) provided by Buyer shall cooperate in good faith with respect to calculating the value Buyer Arrangements and that any failure to comply with this Section 5.06 as a result of any lack of, or misinformation relating to, the Buyer Arrangements shall not be deemed as a failure to comply with this Section 5.06. No later than five (5) Business Days prior to soliciting the waivers described above, the Company shall provide drafts of such arrangementswaivers and related disclosure and approval materials and applicable analyses and calculations performed in connection therewith to Buyer for its reasonable review, comment and approval (which shall not be unreasonably withheld or delayed).

280G Cooperation. The Company will, (a) As soon as reasonably practicable following the execution of this Agreement but in any case no later than thirty (30) Business Days prior to the Closing Date, Xxxxxxxx HoldCo shall provide to New Parent and New Parent’s advisors, for their reasonable review and comment, its preliminary analysis (“Section 280G Analysis”) regarding the application of Section 280G of the Code and the regulations promulgated thereunder (“Section 280G”) in connection with the Contemplated Transactions (either alone or in combination with any other additional or subsequent event, including a termination of employment) to each Person who is determined by Xxxxxxxx HoldCo to be a “disqualified individual” within the meaning of Section 280G (each such Person, a “280G Disqualified Individual”). No later than fifteen (15) Business Days prior to the Closing Date, Xxxxxxxx HoldCo shall provide to New Parent and New Parent’s advisors, for their reasonable review and comment, its final Section 280G Analysis. (b) Xxxxxxxx HoldCo shall (a) use commercially reasonable efforts to obtain from each “disqualified individual” obtain, prior to the solicitation of the 280G Approval (as defined in Section 280G(c) of the Code) below), a waiver by such individual agreement from each 280G Disqualified Individual who could otherwise receive or retain or have the right or entitlement to receive or retain any “parachute payment” within the meaning of Section 280G, waiving any and all payments rights or entitlements to receive or retain any such payment to the extent that the value thereof (determined in accordance with Section 280G) equals or other benefits) contingent on the consummation of the transactions contemplated by this Agreement exceeds three times such Person’s “base amount” (within the meaning of Section 280G(b)(2)(A)(i) of the Code) to the extent necessary so that such payments and benefits would not be “excess parachute payments” under determined in accordance with Section 280G), unless the 280G Approval is obtained (each such waiver agreement, a “280G Waiver”); provided that a “disqualified individual’s” election not to execute a 280G Waiver despite Xxxxxxxx HoldCo’s commercially reasonable efforts to obtain such waiver will not, by itself, constitute a breach of the Code this Section 6.10, and (b) following the execution of the 280G Waivers by any applicable “disqualified individuals,” solicit and take commercially reasonable efforts to the extent one obtain any necessary stockholder approval of any such payments or more waivers described in Section ‎6.8(a) are obtained, submit to its stockholders for a vote all such benefits so waived payments in a manner such that, if such vote is approved by the stockholders in a manner that satisfies is intended to satisfy all the stockholder approval requirements under of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder (the “280G Stockholder Approval RequirementsApproval”), ; provided that the stockholders’ failure to approve such waived payments and benefits pursuant to the 280G Approval despite Xxxxxxxx HoldCo’s commercially reasonable efforts to obtain such 280G Approval will not not, by itself, constitute a “parachute payments” under Section 280G of the Code; provided, that in no event will this Section ‎6.8 be construed to require the Company to compel any Person to waive any existing rights under any contract or agreement that such Person has with the Company and in no event will the Company be deemed in breach of this Section ‎6.8 if any such Person refuses 6.10. (c) No later than ten (10) Business Days prior to waive any such rights. Buyer soliciting the 280G Waivers as provided above, Xxxxxxxx HoldCo shall provide to New Parent and New Parent’s advisors drafts of the Companystockholder approval materials (including Section 280G Waivers, no less than fifteen disclosure and consent documentation) for their reasonable review and comment (15) days prior to the Closing Date, any arrangements entered into at the direction of Buyer or between Buyer and its Affiliates, on the one hand, and a disqualified individual (provided the Company has provided the Buyer with a list of all which such disqualified individuals at least five (5) days prior to such date), on the other hand (“Buyer Arrangements”) and the Company and Buyer comments shall cooperate be considered in good faith with respect to calculating the value of by Xxxxxxxx HoldCo for incorporation into such arrangementsdocumentation).

280G Cooperation. The Company will, prior Prior to the Closing Date, the Company shall (ai) use commercially reasonable efforts to solicit and obtain from each “disqualified individual” (as defined in within the meaning of Section 280G(c) of the CodeCode and the regulations thereunder) a waiver by such individual of who has the right to receive any and all payments (or other benefits) contingent on the consummation of the transactions contemplated by this Agreement benefits that could reasonably be deemed to constitute “parachute payments” (within the meaning of Section 280G(b)(2)(A)(i280G(b)(2)(A) of the CodeCode and the regulations thereunder) (the “Section 280G Payments”) a waiver of such disqualified individual’s rights to the extent necessary some or all of such payments or benefits so that such any remaining payments and and/or benefits would shall not be deemed to be “excess parachute payments” under (within the meaning of Section 280G of the Code and the regulations thereunder) and (bii) submit to the extent one or more waivers described in Section ‎6.8(a) are obtainedStockholders for approval, submit to its stockholders for a vote all such waived payments in a manner such that, if such vote is approved by consistent with the stockholders in a manner that satisfies the stockholder approval requirements under of Section 280G(b)(5)(B) of the Code and regulations promulgated thereunder (Code, the “receipt by such disqualified individuals of some or all of such Section 280G Stockholder Approval Requirements”), such waived Payments so that any remaining payments will and/or benefits shall not constitute a be deemed to be “excess parachute payments” under (within the meaning of Section 280G of the Code; providedCode and the regulations thereunder) (subsection (i) and (ii) collectively, that in no event will this the “Section ‎6.8 be construed to require 280G Vote”). At least two (2) Business Days before taking such actions, the Company shall deliver to compel any Person to waive any existing rights under any contract or agreement that such Person has with Acquiror for review and comment (which the Company will consider in good faith) copies of any documents or agreements necessary to effect the Section 280G Vote, including, but not limited to, customary parachute payment calculations prepared by the Company’s legal counsel, accountants or tax advisors, any shareholder consent form, disclosure statement, or waiver, and in no event will the Company be deemed shall consider in breach of this Section ‎6.8 if any good faith all comments received from Acquiror on such Person refuses to waive any such rightsdocuments or agreements. Buyer shall provide to the Company, no less than fifteen (15) days prior Prior to the Closing Date, any arrangements entered into at the direction of Buyer or between Buyer and its Affiliates, on the one handCompany shall provide proof reasonably satisfactory to Acquiror that (a) shareholder approval was obtained, and a disqualified individual the Section 280G Payments may be paid or provided, as applicable, or (provided the Company has provided the Buyer with a list of all such disqualified individuals at least five (5b) days prior to such date)shareholder approval was not obtained, on the other hand (“Buyer Arrangements”) and the Company and Buyer shall cooperate in good faith with respect to calculating the value of such arrangementsSection 280G Payments will not be paid or provided, as applicable.