Common use of 280G Matters Clause in Contracts

280G Matters. Prior to the Closing, the Company shall submit for approval in a manner that complies with the requirements of Section 280G(b)(5)(A)(ii) of the Code and the regulations promulgated thereunder (the “Section 280G Approval”) all payments or benefits that in the absence of such approval could reasonably be expected to constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder) to any individuals that are “disqualified individuals” (within the meaning of Section 280G(c) of the Code and the regulations thereunder). To the extent that any such “disqualified individual” has the right to receive payments that could constitute “parachute payments”, the Company and the Company Subsidiaries, as applicable, shall obtain an irrevocable written waiver of such rights prior to soliciting the approval described in the immediately preceding sentence such that the Section 280G Approval shall, if successful, establish each “disqualified individual’s” right to the payment. The Company shall provide, or cause to be provided, to Buyer a draft of all Section 280G Approval related documents, including any disclosure documents and “disqualified individual” waivers. The Company shall incorporate any reasonable comments that are timely made by Buyer to the Section 280G Approval related documents. Prior to the Effective Time, the Company shall deliver to Buyer evidence that the Section 280G Approval described in this Section 6.14 was solicited and no “parachute payments” related to such vote will be payable or retained.

280G Matters. Prior As soon as possible after the date of this Agreement, and in any event prior to the ClosingEffective Time, the Company shall submit for approval to a stockholder vote the right of any “disqualified individual” (as defined in a manner that complies with the requirements of Section 280G(b)(5)(A)(ii280G(c) of the Code Code) listed in Section 5.6 of the Company Disclosure Schedule to receive any and the regulations promulgated thereunder (the “Section 280G Approval”) all payments (or benefits that in other benefits) contingent on the absence consummation of such approval could reasonably be expected to constitute “parachute payments” the transactions contemplated by this Agreement (within the meaning of Section 280G 280G(b)(2)(A)(i) of the Code and the regulations thereunderCode) to any individuals the extent necessary so that, if such vote is adopted by the Company stockholders in a manner that are “disqualified individuals” (within satisfies the meaning of stockholder approval requirements under Section 280G(c280G(b)(5)(B) of the Code and the regulations promulgated thereunder). To the extent that any , no payment received by such “disqualified individual” has the right to receive payments that could constitute would be a “parachute payments”, payment” under Section 280G(b) of the Company and Code (determined without regard to Section 280G(b)(4) of the Company Subsidiaries, as applicable, Code). Such vote shall obtain an irrevocable written waiver of such rights prior to soliciting establish the approval described in the immediately preceding sentence such that the Section 280G Approval shall, if successful, establish each “disqualified individual’s” right to the paymentpayment or other compensation. The In addition, the Company shall provide, or cause provide adequate disclosure to be provided, Company stockholders entitled to Buyer a draft vote under Section 280G(b)(5)(B) of all Section 280G Approval related documentsmaterial facts concerning all payments that, including but for such vote, could be deemed “parachute payments” to any disclosure documents and such “disqualified individual” waivers. The Company shall incorporate any reasonable comments that are timely made by Buyer to the under Section 280G Approval related documentsof the Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and regulations promulgated thereunder. Prior to the Effective Timestockholder vote contemplated by this Section 5.6, the Company shall deliver give the Buyer a reasonable opportunity to Buyer evidence that review and approve (such approval not to be unreasonably withheld, delayed or conditioned) its calculations and any document to be delivered to any “disqualified individual” or the Section 280G Approval described Company Stockholders in this Section 6.14 was solicited and no “parachute payments” related to such vote will be payable or retainedconnection with the foregoing.

280G Matters. Prior to the ClosingClosing Date, the Company shall submit for approval in solicit a manner that complies vote by the Company Stockholders, intended to comply with the requirements of Section 280G(b)(5)(A)(ii280G(b)(5)(B) of the Code and Code, with respect to the regulations promulgated thereunder right of any “disqualified individual” (the “as defined under Section 280G Approval”of the Code) all to receive or retain any payments or benefits that would, in the absence of such approval could reasonably stockholder approval, constitute excess parachute payments. Prior to soliciting such vote, the Company shall seek from each Person determined by the Company in good faith to be expected to a disqualified individual a waiver that provides that no payments and/or benefits that would separately or in the aggregate constitute “excess parachute payments” (within the meaning of Section 280G(b)(1) of the Code (“Parachute Payments”) with respect to such disqualified individual shall, in the absence of stockholder approval obtained pursuant to the stockholder vote described in the immediately preceding sentence, be payable to or retained by such disqualified individual to the extent such Parachute Payments would not be deductible by the payor by reason of the application of Section 280G of the Code and or would result in the regulations thereunder) to any individuals that are “disqualified individuals” (within imposition of the meaning of excise tax under Section 280G(c) 4999 of the Code and the regulations thereunder). To the extent that any on such “disqualified individual” has the right . Any payments and benefits to receive payments that could constitute “parachute payments”, be provided to any disqualifying individuals by Parent or its Affiliates shall be taken into account for purposes of calculating Parachute Payments and for purposes of Company compliance with this Agreement only if information relating thereto is timely provided to the Company in adequate detail. All materials produced by the Company in connection with the implementation of this Section 5.21 shall be provided to Parent at least five (5) Business Days in advance for Parent’s review and comment, and the Company Subsidiariesshall consider any of Parent’s requested changes or comments in good faith and shall consent to include them, as applicable, shall obtain an irrevocable written waiver of such rights prior to soliciting the approval described in the immediately preceding sentence such that the Section 280G Approval shall, if successful, establish each “disqualified individual’s” right to the payment. The Company shall provide, or cause consent not to be provided, to Buyer a draft of all Section 280G Approval related documents, including any disclosure documents and “disqualified individual” waivers. The Company shall incorporate any reasonable comments that are timely made by Buyer to the Section 280G Approval related documents. Prior to the Effective Time, the Company shall deliver to Buyer evidence that the Section 280G Approval described in this Section 6.14 was solicited and no “parachute payments” related to such vote will be payable or retainedunreasonably withheld.

280G Matters. Prior to the Closing, the Company shall submit for use its reasonable best efforts to take such actions that are intended to ensure that the payment of any amounts or benefits (whether or not accelerated) to a “disqualified individual” (as defined in Section 280G(c) of the Code) in connection with the transactions contemplated hereunder, would not, separately or in the aggregate, reasonably be expected to result in the disallowance of a deduction to the 041945-0274-16051-Active.21513949.1 Company or its Subsidiaries, as applicable, under Section 280G of the Code in connection with the transactions contemplated hereunder, including, as necessary, (a) soliciting the requisite approval of the Company’s direct or indirect stockholders of all or a portion of any such payments or benefits, in a manner that complies with meets the shareholder approval requirements of Section 280G(b)(5)(A)(ii280G(b)(5) of the Code and Treasury Regulation Section 1.280G-1, Q/A-7 (including providing such members adequate disclosure of all material facts concerning any such payments or benefit as provided in, and otherwise conducting such solicitation in conformity with, Section 280G(b)(5)(B) of the regulations promulgated thereunder Code) and (b) to the extent necessary, attempting to obtain a waiver from each such “disqualified individual” entitled to receive any payments or benefits which would reasonably be expected, individually or when aggregated with other payments or benefits, to cause or trigger any “parachute payment” (as defined in Section 280G Approval”280G(b) all of the Code) in connection with the transactions contemplated hereunder of such disqualified individual’s right to receive the portion of such payments or benefits that in the absence of such approval could would reasonably be expected to constitute to, individually or when aggregated with other payments or benefits, cause or trigger any “excess parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder) to any individuals that are “disqualified individuals” (within the meaning of Section 280G(c) of the Code and the regulations thereunderCode). To the extent that any such “disqualified individual” has the right to receive payments that could constitute “parachute payments”, the Company and the Company Subsidiaries, as applicable, shall obtain an irrevocable written waiver of such rights prior to soliciting the approval described in the immediately preceding sentence such that the Section 280G Approval shall, if successful, establish each “disqualified individual’s” right to the payment. The Company shall provide, or cause to be provided, to provide Buyer a draft with drafts of all Section 280G Approval related documentssuch solicitation materials and consents for review and comment prior to delivery to stockholders or disqualified individuals, including any disclosure documents and “disqualified individual” waivers. The Company shall incorporate any reasonable comments that are timely made by Buyer to the Section 280G Approval related documentsas applicable. Prior to the Effective TimeClosing, the Company shall deliver to Buyer Buyer, reasonably satisfactory evidence that a vote of the Section 280G Approval described Company’s stockholders was solicited in accordance with the foregoing provisions of this Section 6.14 was solicited 7.6 and no “parachute payments” related whether or not the requisite number of stockholder votes consenting to such vote will be payable or retainedbenefits and payments was obtained with respect to such benefits and payments.

280G Matters. Prior to the ClosingClosing Date, the Company shall use commercially reasonable efforts to solicit waivers (each, a “280G Waiver”), as applicable, from each Person who is a “disqualified individual” (as defined in Treasury Regulation 1.280G-1) of the Company (a “Disqualified Individual”) and take all actions necessary to submit and recommend for approval (such approval, the “280G Approval”), in a manner that complies with satisfies Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the requirements Code, the right of such Disqualified Individual to receive or retain, as applicable, any payments and benefits that may be considered “parachute payments” within the meaning of Section 280G(b)(5)(A)(ii280G(b)(2) of the Code and (“Parachute Payments”), such that the regulations promulgated thereunder (the “Section 280G Approval”) all payments or benefits that in the absence deduction of such approval could reasonably payments and benefits will not be expected to constitute “parachute payments” (within limited by the meaning application of Section 280G of the Code and the regulations Treasury Regulations issued thereunder) . Prior to obtaining any 280G Waiver and seeking the 280G Approval, Parent shall provide the Company with all information and documents reasonably necessary to allow the Company to determine whether any payments made or to be made or benefits granted or to be granted pursuant to any individuals that are “disqualified individuals” employment agreement or Contractual Obligation entered into or negotiated by Parent or any of its Affiliates, together with all other Parachute Payments, could reasonably be considered to be Parachute Payments and (within ii) no later than five (5) Business Days prior to the meaning of Section 280G(c) of the Code and the regulations thereunder). To the extent that any such “disqualified individual” has the right to receive payments that could constitute “parachute payments”Closing Date, the Company and the Company Subsidiaries, as applicable, shall obtain an irrevocable written waiver provide drafts of such rights prior to soliciting the approval described in the immediately preceding sentence such that the Section 280G Approval shallanalysis prepared by the Company (or third party engaged by the Company, if successfulas applicable), establish each “disqualified individual’s” right to the payment. The Company shall providedisclosure statement, or cause to be provided, to Buyer a draft of all Section 280G Waivers and 280G Approval related documentsmaterials to Parent for its review, including any disclosure documents and “disqualified individual” waivers. The Company Stockholder shall incorporate accept any reasonable comments that are timely made provided by Buyer to the Section 280G Approval related documents. Prior to the Effective Time, the Company shall deliver to Buyer evidence that the Section 280G Approval described in this Section 6.14 was solicited and no “parachute payments” related to such vote will be payable or retainedParent.