Common use of 280G Payments Clause in Contracts

280G Payments. Prior to Closing, the Sellers and the Company shall (a) cause each of the Company’s “Disqualified Individuals” (as such term is defined in Section 280G(c) of the Code) to waive, and/or make the receipt or payment of subject to and contingent upon the attainment of a successful 280G Shareholder Vote, any payments or benefits, including without limitation the removal of any forfeiture restrictions on any equity of the Seller or its Affiliates held by such executives, that would not be deductible pursuant to Section 280G of the Code if the 280G Shareholder Vote (as defined below) fails or does not attain the requisite approval, and (b) take all actions necessary to timely conduct a shareholder vote which complies in all respects with the shareholder vote requirements needed for the Company to avail itself of the exemption contained in Section 280G(b)(5) of the Code and the applicable regulations promulgated thereunder with respect to each of the individuals specified in clause (a) above (the “280G Shareholder Vote”). The Company shall provide drafts of the form of such waivers and stockholder approval materials to the Buyer for its review and approval (which approval will not be unreasonably delayed or withheld) no later than five (5) Business Days prior to obtaining such waivers and soliciting such 280G Shareholder Vote. If the 280G Shareholder Vote fails to achieve the requisite approval in respect of any Disqualified Individual or otherwise does not qualify for such exemption, the Seller shall provide to the Buyer the name of such individual and the amount waived or otherwise subject to such approval, and no amount so waived or otherwise subject to such approval shall be paid to any such individual.

280G Payments. Prior to ClosingAs promptly as practicable after the execution of this Agreement, the Sellers and the Company shall (a) cause each submit to the stockholders of the Company’s “Disqualified Individuals” Company (in a manner satisfactory to Parent) for approval by such number of stockholders of the Company as such term is defined in required by the terms of Section 280G(c280G(b)(5)(B) of the Code) to waive, and/or make the receipt or payment of subject to and contingent upon the attainment Code a written consent in favor of a successful 280G Shareholder Vote, any payments or benefits, including without limitation single proposal to render the removal parachute payment provisions of any forfeiture restrictions on any equity of the Seller or its Affiliates held by such executives, that would not be deductible pursuant to Section 280G of the Code if and the Treasury Regulations thereunder (collectively, “Section 280G”) inapplicable to any and all payments and/or benefits provided pursuant to Acquired Company Employee Plans, Acquired Company Employee Agreements or other Acquired Company Contracts (including payments pursuant to the Severance Agreements or any employee bonus plan adopted in connection with the Contemplated Transactions) 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 Shareholder Vote (as defined below) fails or does not attain the requisite approval, and (b) take all actions necessary that would be subject to timely conduct a shareholder vote which complies in all respects with the shareholder vote requirements needed for the Company to avail itself an excise tax under Section 4999 of the exemption contained 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)(5280G(b)(5)(B) of the Code and the applicable regulations promulgated thereunder with respect to each Treasury Regulations thereunder, including Q-7 of the individuals specified in clause (a) above (the “280G Shareholder Vote”)Section 1.280G-1 of such Treasury Regulations. The Company shall provide drafts of agrees that: (i) in the form absence of such stockholder approval, no Section 280G Payments shall be made; and (ii) promptly after execution of this Agreement, 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 materials documents contemplated by this Section 5.6, including the waivers, shall be subject to the Buyer for its review and approval (which approval will not be unreasonably delayed or withheld) no later than five (5) Business Days prior to obtaining such waivers and soliciting such 280G Shareholder Vote. If the 280G Shareholder Vote fails to achieve the requisite approval in respect of any Disqualified Individual or otherwise does not qualify for such exemption, the Seller shall provide to the Buyer the name of such individual and the amount waived or otherwise subject to such approval, and no amount so waived or otherwise subject to such approval shall be paid to any such individualParent.

280G Payments. Prior to Closingthe Effective Time, the Sellers and the Company shall (ai) cause use commercially reasonable efforts to obtain from each of the Company’s “Disqualified Individualsdisqualified individual” (as such term is defined in Section 280G(c) of the Code) to waive, and/or make the receipt or payment of subject to and contingent upon the attainment of a successful 280G Shareholder Vote, any payments or benefits, including without limitation the removal waiver by such individual of any forfeiture restrictions and all rights to payments (or other benefits) contingent on any equity the consummation of the Seller or its Affiliates held by Transactions (within the meaning of Section 280G(b)(2)(A)(i) of the Code) to the extent necessary so that such executives, that payments and benefits would not be deductible pursuant to “excess parachute payments” under Section 280G of the Code if the 280G Shareholder Vote (as defined below) fails or does not attain the requisite approval, and (bii) take submit to its stockholders for a vote all actions necessary to timely conduct such waived payments in a shareholder manner such that, if such vote which complies is adopted by the stockholders in all respects with a manner that satisfies the shareholder vote stockholder approval requirements needed for the Company to avail itself of the exemption contained in under Section 280G(b)(5280G(b)(5)(B) of the Code and the applicable regulations promulgated thereunder with respect to each thereunder, no payment received by such “disqualified individual” would be a “parachute payment” under Section 280G(b) of the individuals specified in clause (a) above (the “280G Shareholder Vote”)Code. The Company shall agrees to provide to Parent written drafts of the form of such waivers shareholder disclosure statement, waivers, and stockholder approval materials forms that will be provided to disqualified individuals and stockholders in advance of delivering such documents to the disqualified individuals and stockholders, as applicable, and allow Parent a reasonable opportunity to provide comments on such documents. The parties acknowledge that this Section 5.12 shall not apply to any Buyer for its review and approval (which approval will not be unreasonably delayed or withheld) Arrangements unless Parent provided sufficient information regarding such Buyer Arrangements to the Company no later than five ten (510) Business Days prior to obtaining such waivers and soliciting such 280G Shareholder Vote. If the 280G Shareholder Vote fails to achieve Effective Time, so that, for the requisite approval in respect avoidance of any Disqualified Individual or otherwise does not qualify for such exemptiondoubt, the Seller shall provide to the Buyer the name of such individual and the amount waived or otherwise subject to such approval, and no amount so waived or otherwise subject to such approval compliance with this Section 5.12 shall be paid to any determined as if such individualBuyer Arrangements had not been entered into.