Common use of 280G Matters Clause in Contracts

280G Matters. The Company shall, prior to the Closing Date, (a) use commercially reasonable efforts to secure from each “disqualified individual” (within the meaning of Section 280G of the Code) of the Company or any of its Subsidiaries or parent companies who has a right to any payments and/or benefits or potential right to any payments and/or benefits under any Company Plan or otherwise that are “contingent” (within the meaning of Section 280G of the Code) on the transactions contemplated by this Agreement and that would be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code) a waiver, subject to the approval described in clause (b), of such Person’s rights to all of such parachute payments to the extent that such amounts constitute “excess parachute payments” (within the meaning of Section 280G of the Code) (such waived excess parachute payments, the “Waived 280G Benefits”) and (b) submit any Waived 280G Benefits that are waived by the “disqualified individuals” referred to in clause (a) to the approval of the shareholders of the Company to the extent and in the manner required under Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder. Not less than five days prior to distribution of any materials to the shareholders or “disqualified individuals” (within the meaning of Section 280G of the Code) in connection with the waiver and vote described in this Section 5.15, the Company shall provide Parent for its review and comment a copy of all such materials and a copy of its calculations with respect to Section 280G of the Code and shall accept Parent’s reasonable and timely provided comments to such documents. Prior to the Closing, the Company shall deliver to Parent evidence reasonably satisfactory to Parent that a vote of the shareholders was solicited in accordance with the foregoing provisions of this Section 5.15 and that either (i) the requisite number of applicable shareholder votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (ii) the 280G Approval was not obtained and, as a consequence, the Waived 280G Benefits have not been and shall not be made or provided.

280G Matters. The Company shallTo the extent that any or all of the payments, prior benefits or other compensation payable to the Closing Date, (a) use commercially reasonable efforts to secure from each a “disqualified individual” (as defined in Section 280G(c) of the Code) might be considered contingent on the consummation of the transactions contemplated by this Agreement within the meaning of Section 280G of the Code, the Company shall (i) disclose to Buyer all such payments, benefits, and compensation, together with all related assumptions and data, so that Buyer may review such amounts, (ii) use Commercially Reasonable Efforts to obtain from each “disqualified individual” (as defined in Section 280G(c) of the Company or Code) a waiver by such individual of any of its Subsidiaries or parent companies who has a right to any payments and/or and all such payments, benefits or potential right other compensation to any payments and/or benefits under any Company Plan or otherwise that are “contingent” (within the meaning of extent required by Section 280G of the Code, and (iii) on the transactions contemplated prior to Closing, cause all such payments to be disclosed to, and submitted to its stockholders for approval, in a manner such that no payment, benefit or other compensation received by this Agreement and that such “disqualified individual” would be deemed to constitute a “parachute paymentspayment” (within the meaning of under Section 280G of the Code) a waiver. The Company shall provide adequate disclosure to stockholders entitled to vote of all material facts concerning all payments, subject to the approval described in clause (b)benefits and other compensation that, of but for such Person’s rights to all of such parachute payments to the extent that such amounts constitute vote, could be deemed “excess parachute payments” (within the meaning of to any such “disqualified individual” under Section 280G of the Code) (such waived excess parachute payments, the “Waived 280G Benefits”) and (b) submit any Waived 280G Benefits that are waived by the “disqualified individuals” referred Code in a manner intended to in clause (a) to the approval of the shareholders of the Company to the extent and in the manner required under satisfy Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder. Not less than five days prior to distribution of any materials Such vote shall establish the “disqualified individual’s” right to the shareholders payment, benefit or “other compensation. The Company agrees that the shareholder disclosure statement, waivers, and stockholder approval documents that will be provided to disqualified individuals” (within individuals and stockholders shall be subject to the meaning of Section 280G review and reasonable approval of the Code) in connection with the waiver and vote described in this Section 5.15Buyer. Notwithstanding such waiver, the Company shall provide Parent for its review and comment a copy of all make such materials and a copy of its calculations with respect to Section 280G of waived payments if the Code and shall accept Parent’s reasonable and timely provided comments to such documents. Prior to the Closing, the Company shall deliver to Parent evidence reasonably satisfactory to Parent that a vote of the shareholders was solicited in accordance with the foregoing provisions of stockholders is obtained as contemplated by this Section 5.15 and that either (i) the requisite number of applicable shareholder votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (ii) the 280G Approval was not obtained and, as a consequence, the Waived 280G Benefits have not been and shall not be made or provided7.14.

280G Matters. The Company shall, (A) At least five (5) Business Days prior to the Closing Date, (a) the Company shall use commercially its reasonable best efforts to secure solicit from each “disqualified individual” (within the meaning of Section 280G of the Code) of the Company Person to whom any payment or any of its Subsidiaries benefit is required or parent companies who has a right proposed to any payments and/or benefits or potential right to any payments and/or benefits under any Company Plan or otherwise that are “contingent” (within the meaning of Section 280G of the Code) on be made in connection with the transactions contemplated by this Agreement and that would be deemed to constitute “parachute payments” (within the meaning of under Section 280G 280G(b)(2) of the CodeCode (each such Person, a “Disqualified Individual,” and such payments “Parachute Payments”) a waiver, subject written agreement waiving such Disqualified Individual’s right to the approval described in clause (b), of such Person’s rights to receive some or all of such parachute payments payment or benefit (the “Waived Benefits”), to the extent necessary so that all remaining payments and benefits applicable to such amounts constitute “excess Disqualified Individual shall not be deemed a parachute payments” (within payment, and accepting in substitution for the meaning of Section 280G of Waived Benefits the Code) (such waived excess parachute payments, right to receive the “Waived 280G Benefits”) and (b) submit any Waived 280G Benefits that are waived only if approved by the “disqualified individuals” referred to in clause (a) to the approval of the shareholders stockholders of the Company to the extent and in the a manner required under that complies with Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder. Not less than five (B) at least two (2) days prior to distribution the Closing submit the Waived Benefits of any materials each Disqualified Individual who has executed a waiver in accordance with this Section 6.17 for approval of the stockholders and such Disqualified Individual’s right to receive the shareholders or “disqualified individuals” (within Waived Benefits shall be conditioned upon receipt of the meaning of requisite approval by the stockholders in a manner that complies with Section 280G 280G(b)(5)(B) of the Code. At least fifteen (15) in connection with Business Days prior to the waiver and vote described in this Section 5.15Closing Date, the Company shall provide Parent for Buyer and its review counsel with a list of disqualified individuals (as defined in Section 280G(c) of the Code). At least ten (10) Business Days prior to the Closing Date, the Buyer will provide the Company with the information to be included in the calculations and comment a copy of all such materials and a copy disclosure related to arrangements to be entered into between Buyer or any of its calculations with respect to Section 280G of the Code Affiliates and shall accept Parent’s reasonable and timely provided comments to such documentsany Disqualified Individual (“Buyer Arrangements”). Prior At least seven (7) Business Days prior to the Closing, the Company shall deliver finalize the calculation, and provide the waiver agreement and the disclosure statement prepared in connection with the actions contemplated by this Section 6.17 to Parent evidence reasonably satisfactory to Parent that a vote Buyer for review and comment. If the information contained in the calculations is incorrect by reason of the shareholders was solicited information provided by Buyer in accordance connection with the foregoing provisions calculation and disclosure of the Buyer Arrangements, then the Company’s failure to include the Buyer Arrangements in the stockholder voting materials described in this Section 5.15 and that either (i) 6.17 will not result in a breach of the requisite number of applicable shareholder votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (ii) the 280G Approval was not obtained and, as a consequence, the Waived 280G Benefits have not been and shall not be made or providedcovenants set forth in this Section 6.17.

280G Matters. The Company shallTo the extent applicable, prior to the Closing Date, the Company shall (a) use commercially reasonable efforts to secure from each any Person who is a “disqualified individual” (within as defined in Section 280G of the meaning Code), and who has a right to any payments and/ or benefits or potential right to any payments and/ or benefits in connection with the Merger that would reasonably be expected to constitute “parachute payments” pursuant to Section 280G of the Code, a waiver of such Person’s right to any such “parachute payments” to the extent required to avoid the imposition of Tax by virtue of the operation of Section 280G of the Code (the “Waived 280G Benefits”) and to accept in substitution therefor the right to receive such payments only if approved by the stockholders of the Company in a manner that complies with Section 280G of the Code and the regulations promulgated thereunder, and (b) submit to the stockholders of the Company, for approval or disapproval by such stockholders holding the number of shares of Company Stock required by the terms of Section 280G(b)(5)(B) of the Code and the regulations thereunder, the Waived 280G Benefits in a manner intended to provide that no such payments and benefits shall be deemed “parachute payments” under Section 280G of the Code and the regulations thereunder. The Company agrees that in the absence of such stockholder approval, no Waived 280G Benefits will be paid, received, or retained. Moreover, this Section 7.23 shall not apply to any contracts or arrangements (including any contracts or arrangements that provide for any equity or equity-based incentive awards) between Acquiror or any of its Affiliates and a disqualified individual unless such contracts or arrangements are provided to the Company at least ten (10) Business Days prior to the Closing Date. Acquiror shall cooperate with the Company in good faith to calculate or determine the value (for the purposes of Section 280G of the Code) of the Company or any of its Subsidiaries or parent companies who has a right to any payments and/or or benefits granted or potential right to contemplated in any payments and/or benefits such contracts or arrangements that could constitute a “parachute payment” under any Company Plan or otherwise that are “contingent” (within the meaning of Section 280G of the Code) on the transactions contemplated by this Agreement and that would be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code) a waiver, subject to the approval described in clause (b), of such Person’s rights to all of such parachute payments to the extent that such amounts constitute “excess parachute payments” (within the meaning of Section 280G of the Code) (such waived excess parachute payments, the “Waived 280G Benefits”) and (b) submit any Waived 280G Benefits that are waived by the “disqualified individuals” referred to in clause (a) to the approval of the shareholders of the Company to the extent and in the manner required under Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder. Not less than five days prior to distribution of any materials to the shareholders or “disqualified individuals” (within the meaning of Section 280G of the Code) in connection with the waiver and vote described in this Section 5.15, the Company shall provide Parent for its review and comment a copy of all such materials and a copy of its calculations with respect to Section 280G of the Code and shall accept Parent’s reasonable and timely provided comments to such documents. Prior to the Closing, the Company shall deliver to Parent evidence reasonably satisfactory to Parent that a vote of the shareholders was solicited in accordance with the foregoing provisions of this Section 5.15 and that either (i) the requisite number of applicable shareholder votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (ii) the 280G Approval was not obtained and, as a consequence, the Waived 280G Benefits have not been and shall not be made or provided.

280G Matters. The Company shall, prior Prior to the Closing DateEffective Time, (a) use commercially reasonable efforts to secure from each “disqualified individual” (within the meaning of Section 280G of the Code) of the Company or any of its Subsidiaries or parent companies who has shall submit to a right to any payments and/or benefits or potential right to any payments and/or benefits under any Company Plan or otherwise that are “contingent” stockholder vote (within the meaning of Section 280G of the Code) on the transactions contemplated by this Agreement and that would which shall be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code) a waiver, subject to the approval described in clause (bimplemented via written-consent), of such Person’s rights to all of such parachute payments to in a manner that satisfies the extent that such amounts constitute “excess parachute payments” (within the meaning of Section 280G of the Code) (such waived excess parachute payments, the “Waived 280G Benefits”) and (b) submit any Waived 280G Benefits that are waived by the “disqualified individuals” referred to in clause (a) to the approval of the shareholders of the Company to the extent and in the manner required stockholder vote requirements under Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder. Not less than five days prior to distribution , the right of any materials to the shareholders or “disqualified individualsindividual” (as defined in Section 280G(c) of the Code) to receive any and all payments (or other benefits) contingent on the consummation of the transactions contemplated by this Agreement (within the meaning of Section 280G 280G(b)(2)(A)(i) of the Code) in connection with to the waiver extent necessary so that no payment received by such “disqualified individual” shall be a “parachute payment” under Section 280G(b) of the Code (determined without regard to Section 280G(b)(4) of the Code). Such stockholder vote shall establish the disqualified individual’s right to the payment or other compensation and vote described in this Section 5.15the Company shall obtain any required waivers or consents from the disqualified individual prior to the stockholder vote. In addition, the Company shall provide Parent for its review and comment a copy adequate disclosure to Company stockholders that hold Shares of all material facts concerning all payments to any such materials and a copy of its calculations with respect to disqualified individual that, but for such stockholder vote, could be deemed “parachute payments” under Section 280G of the Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and regulations promulgated thereunder. Parent and its counsel shall accept Parent’s reasonable have the right to review and timely provided comments comment on all documents required to such documents. Prior be delivered to the Closing, Company stockholders (at least five Business Days prior to delivery) in connection with such stockholder vote and any required disqualified individual waivers or consents (at least five Business Days prior to execution) and Parent and its counsel shall be provided copies of all vote documents executed by the Company shall deliver to Parent evidence reasonably satisfactory to Parent that a vote of the shareholders was solicited in accordance with the foregoing provisions of this Section 5.15 stockholders and that either (i) the requisite number of applicable shareholder votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (ii) the 280G Approval was not obtained and, as a consequence, the Waived 280G Benefits have not been and shall not be made or provideddisqualified individuals.

280G Matters. The Company shall, prior to the Closing Date, (a) Seller shall use commercially reasonable efforts to secure (a) prior to the Closing, obtain from each “disqualified individual” (within the meaning of as defined in Section 280G 280G(c) of the Code) of the Company (each, a “disqualified individual”) who could reasonably be expected to receive or any of its Subsidiaries or parent companies who has a right to retain any payments and/or or benefits or potential right to any payments and/or benefits under any Company Plan or otherwise that are could constitute a “contingentparachute payment” (within the meaning of Section 280G of the Code280G(b)(2)(A) on the transactions contemplated by this Agreement and that would be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code) a waiver, subject to the approval described in clause (b), waiver of such Persondisqualified individual’s rights to such payments or benefits (the “Waived 280G Benefits” and, each such waiver, a “280G Waiver”) so that all of such parachute remaining payments to the extent that such amounts constitute and/or benefits, if any, shall not be “excess parachute payments” (within the meaning of Section 280G of the Code) (such waived excess parachute payments, the “Waived 280G Benefits”) and (b) submit any Waived solicit, prior to the Closing Date, with respect to each individual who provides a duly executed 280G Benefits that are waived by Waiver, stockholder approval (in a manner intended to satisfy the “disqualified individuals” referred to in clause (arequirements of Section 280G(b)(5)(A)(ii) to the approval of the shareholders of the Company to the extent and in the manner required under Section 280G(b)(5)(B) of the Code and the regulations Treasury Regulations promulgated thereunder, in particular, Treasury Regulation Section 1.280G-1, Q/A-7) of the rights of any such disqualified individual to receive or retain the Waived 280G Benefits. Not less No later than five (5) days prior to distribution soliciting 280G Waivers from the disqualified individuals, Seller shall provide drafts of such waivers, disclosure materials and calculations to Buyer for its review and approval (which approval will not be unreasonably withheld, conditioned or delayed). To the extent that any materials contract, agreement or plan is entered into by Buyer or any of its Affiliates and a disqualified individual in connection with the transaction contemplated by this Agreement with effect on or following the Closing Date (collectively, “Buyer Arrangements”), Buyer shall provide a copy of such contract, agreement or plan (or if such contract, agreement or plan does not yet exist, a summary of material terms) to Seller at least seven (7) Business Days prior to the shareholders Closing Date and shall cooperate with Seller in good faith in order to calculate or “disqualified individuals” determine the value (within the meaning for purposes of Section 280G of the Code) of any payments and/or benefits granted or contemplated therein, which may be paid or granted in connection with the waiver and vote described in transactions contemplated by this Section 5.15, the Company shall provide Parent for its review and comment Agreement that could constitute a copy of all such materials and a copy of its calculations with respect to “parachute payment” under Section 280G of the Code and Code. If any of the Waived 280G Benefits fail to be approved by the stockholders as contemplated above, such Waived 280G Benefits shall accept Parent’s reasonable and timely provided comments to such documentsnot be retained, made or provided. Prior to the Closing, the Company Seller shall deliver to Parent Buyer evidence reasonably satisfactory acceptable to Parent Buyer that the waivers were obtained and a vote of the shareholders stockholders was solicited in accordance with the foregoing provisions of this Section 5.15 7.05 and that either (i) the requisite number of applicable shareholder votes of the stockholders was obtained with respect to the any Waived 280G Benefits (the “280G Approval”), ) or (ii) the 280G Approval was not obtained obtained, and, as a consequence, the any Waived 280G Benefits have not been and shall not be retained, made or provided.

280G Matters. The Company shallTo the extent that the execution of this Agreement or the consummation of the transactions contemplated hereby (either alone or together with any other event) would reasonably be expected to entitle any “disqualified individual” to any payments or benefits that, separately or in the aggregate, may constitute “parachute payments” (as each such term is defined in Section 280G of the Code and the applicable rulings and final regulations thereunder (“Section 280G Payments”)), then, prior to the Closing DateSecond Merger Effective Time, the Company or its applicable Affiliate will (ai) use commercially reasonable efforts to secure obtain a waiver from each such disqualified individual of his or her right to receive any payment that could constitute a Section 280G Payment (collectively, the “Waived Payments”) at least one Business Day prior to submitting the Waived Payments for shareholder approval pursuant to the following clause (ii), (ii) submit to the holders of shares of Company Stock entitled to vote for approval, meeting the requirements of Section 280G(b)(5)(B) of the Code and the applicable rulings and final regulations thereunder, and (iii) provide all required disclosure to all Persons entitled to vote under Section 280G(b)(5)(B)(ii) of the Code, such that the deduction of the Waived Payments will not be limited by the application of Section 280G of the Code and the applicable rulings and final regulations thereunder. To the extent any arrangements are entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual” individual on the other hand (within the meaning “Parent Arrangements”) before the Closing Date, the Company shall include such Parent Arrangements in the equityholder voting materials described herein, provided that Parent provides to the Company, no less than seven Business Days prior to the Condition Satisfaction Date, a written description of the Parent Arrangements and cooperates with the Company in good faith in order to calculate or determine the value (for purposes of Section 280G of the Code) of the Company or any of its Subsidiaries or parent companies who has a right to any payments and/or or benefits granted or potential right to any payments and/or benefits contemplated in the Parent Arrangements, that could constitute a “parachute payment” under any Company Plan or otherwise that are “contingent” (within the meaning of Section 280G of the Code) on the transactions contemplated by this Agreement and that would be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code) a waiver, subject . At least three Business Days prior to the approval described in clause (b), of such Person’s rights to all of such parachute payments to the extent that such amounts constitute “excess parachute payments” (within the meaning of Section 280G of the Code) (such waived excess parachute paymentsCondition Satisfaction Date, the “Waived 280G Benefits”Company will deliver to Parent certification that either (x) and (b) submit any Waived 280G Benefits that are waived by the “disqualified individuals” referred to shareholder vote was solicited in clause (a) to the approval of the shareholders of the Company to the extent and in the manner required under conformity with Section 280G(b)(5)(B) of the Code and the applicable rulings and final regulations promulgated thereunder. Not less than five days prior to distribution of any materials to the shareholders or “disqualified individuals” (within the meaning of Section 280G of the Code) in connection with the waiver thereunder and vote described in this Section 5.15, the Company shall provide Parent for its review and comment a copy of all such materials and a copy of its calculations with respect to Section 280G of the Code and shall accept Parent’s reasonable and timely provided comments to such documents. Prior to the Closing, the Company shall deliver to Parent evidence reasonably satisfactory to Parent that a vote of the shareholders was solicited in accordance with the foregoing provisions of this Section 5.15 and that either (i) the requisite number approval of applicable shareholder votes holders of shares of Company Stock entitled to vote was obtained with respect to the Waived Section 280G Benefits (the “280G Approval”)Payments, or (iiy) the shareholder approval of the Section 280G Approval Payments was not obtained andand that, as a consequence, no Waived Payments will be made. Parent and its counsel shall be given a reasonable opportunity to review and comment on all documents prepared by the Waived 280G Benefits have Company in connection with this Section 6.08, including the parachute payment calculations prepared by the Company and/or its Representatives and any amendment or supplement thereto at least three Business Days before such materials are provided to the holders of shares of Company Stock, and the Company shall consider in good faith all comments of Parent and its counsel in connection therewith; provided that (except with respect to any Parent Arrangements which were not been and disclosed to the Company in accordance with this Section 6.08) Parent shall not in no way be made responsible for any of the content of such materials or providedthe information contained therein.

280G Matters. The Company shallFollowing the execution of this Agreement, and in all events prior to the Closing DateClosing, (a) the Company shall use commercially its reasonable best efforts to secure obtain a waiver (a “280G Waiver”) from each Person who would otherwise be entitled to receive a “disqualified individual” parachute payment”, as defined in Section 280G of the Code and as determined without regard to Section 280G(b)(4) or (within 5) of the meaning Code (a “280G Payment”), in connection with the consummation of the transactions contemplated by this Agreement, pursuant to which each such Person will agree to forfeit such 280G Payment if the 280G Approval (as defined below) is not obtained, but solely to the extent required to avoid the imposition of a tax by virtue of the operation of Section 280G of the Code. Prior to Closing, the Company shall, in accordance with Section 280G(b)(5)(B) of the Company or any of its Subsidiaries or parent companies who has a right Code, submit to any payments and/or benefits or potential right to any payments and/or benefits under any Company Plan or otherwise that are “contingent” (within the meaning of Section 280G of the Code) on the transactions contemplated by this Agreement and that would be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code) a waiver, subject to the approval described in clause (b), of such Person’s rights to all of such parachute payments to the extent that such amounts constitute “excess parachute payments” (within the meaning of Section 280G of the Code) (such waived excess parachute payments, the “Waived 280G Benefits”) and (b) submit any Waived 280G Benefits that are waived by the “disqualified individuals” referred to in clause (a) to the approval of the shareholders of the Company to for approval, by such number of shareholders of the extent and in Company as is required by the manner required under terms of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder. Not less than five days prior to distribution of any materials to the shareholders or “disqualified individuals” (within the meaning of Section 280G of the Code) in connection with the waiver and vote described in this Section 5.15such approval, the Company shall provide Parent for its review and comment a copy of all such materials and a copy of its calculations with respect to Section 280G of the Code and shall accept Parent’s reasonable and timely provided comments to such documents. Prior to the Closing, the Company shall deliver to Parent evidence reasonably satisfactory to Parent that a vote of the shareholders was solicited in accordance with the foregoing provisions of this Section 5.15 and that either (i) the requisite number of applicable shareholder votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), any payments and/or benefits that may, in connection with the transactions contemplated by this Agreement, separately or in the aggregate constitute 280G Payments. Written drafts of the form of 280G Waiver, the shareholder disclosure statement (ii) including underlying calculations), the shareholder approval form and any other materials to be submitted to the Company’s shareholders will be provided to Acquiror, in advance of being distributed to such Person or the shareholders, for Acquiror’s review and comment (which review and comment shall not be unreasonably delayed, withheld or conditioned). If no payments and/or benefits could constitute 280G Payments in connection with the transactions contemplated by this Agreement, then the 280G Approval was not obtained and, as a consequence, the Waived 280G Benefits have not been and shall not be made required. For the avoidance of doubt, the Closing is not contingent on the submission or providedadoption of such vote.