Common use of 280G Clause in Contracts

280G. Prior to the Closing, the Company shall use commercially reasonable efforts to (i) seek to obtain a waiver from each Person who is a “disqualified individual” (as defined in Section 280G of the Code) of that portion of any payments or economic benefits received or payable to such Person that is reasonably expected to constitute “parachute payments” (as defined in Section 280G(b) of the Code) (the “Waived 280G Benefits”), and (ii) solicit the approval of its shareholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward to the Buyer Parties at least five (5) days prior to the submission to shareholders entitled to vote on such matters copies of all documents prepared by the Company in connection with this Section 6.21 for the Buyer Parties’ review. Prior to Closing, the Company shall deliver to the Buyer Parties evidence of the results of such vote. Such shareholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Payments, such that if such shareholder approval is not obtained, no portion of the Waived 280G Payments shall be paid, payable, received or retained. Notwithstanding the foregoing, to the extent that any Contract, agreement, or plan is entered into by any member of the Buyer Group or any of their Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Buyer Arrangements”), the Buyer Group shall provide a copy of such Contract, agreement or plan to the Company and the Seller at least fifteen (15) days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G of the Code; provided, that, in any event, the Company’s failure to include the Buyer Arrangements in the stockholder voting materials described herein, for any reason, will not result in a breach of the covenants set forth in this Section 6.21.

280G. Prior to To the Closing, the Company shall use commercially reasonable efforts to (i) seek to obtain a waiver from each Person who is a extent that any “disqualified individual” (as defined in within the meaning of Section 280G 280G(c) of the CodeCode and the regulations thereunder) of that portion of has the right to receive any payments or economic benefits received or payable to such Person that is reasonably expected to constitute “parachute payments” (as defined in within the meaning of Section 280G(b280G(b)(2)(A) of the Code), then, the applicable Acquired Company will, (i) use commercially reasonable efforts to solicit from each such “disqualified individual” a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G Benefits”) so that any remaining payments and/or benefits shall not be deemed to be “parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder), and (ii) solicit with respect to each individual who agrees to the approval waiver described in clause (i), submit to a vote of its shareholders holders of the equity interests of the Company entitled to vote on such matters, the right of any such “disqualified individual” to receive the Waived 280G Benefits. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.11, including by providing the Company with material information in a manner Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than ten (10) Business Days prior to the Closing. Neither the Company nor any of its Affiliates will be deemed to be in breach of this Section 8.11 to the extent that complies with Sections 280G(b)(5)(A)(ii) and the vote described in this Section 8.11 does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward promulgated thereunder solely due to the Buyer Parties at least five (5) days prior to the submission to shareholders entitled to vote on such matters copies of all documents prepared by the Company in connection with this Section 6.21 for the Buyer Parties’ review. Prior to Closing, the Company shall deliver to the Buyer Parties evidence of the results of such vote. Such shareholder approval, if obtained, shall establish the disqualified individualBuyer’s right to receive or retain the Waived 280G Payments, such that if such shareholder approval is not obtained, no portion of the Waived 280G Payments shall be paid, payable, received or retained. Notwithstanding the foregoing, to the extent that any Contract, agreement, or plan is entered into by any member of the Buyer Group or any of their Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Buyer Arrangements”), the Buyer Group shall provide a copy of such Contract, agreement or plan to the Company and the Seller at least fifteen (15) days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G of the Code; provided, that, in any event, the Company’s failure to include the Buyer Arrangements in the stockholder voting materials described herein, for any reason, will not result in a breach of the covenants set forth in this Section 6.21immediately preceding sentence.

280G. Prior to the Closing, the Company shall (a) use commercially reasonable efforts to (i) seek to obtain a waiver secure from each Person person who is has a “disqualified individual” (as defined in Section 280G of the Code) of that portion of right to any payments and/or benefits as a result of or economic benefits received or payable to such Person in connection with the transactions contemplated herein that is reasonably expected would be deemed to constitute “parachute payments” (as defined in within the meaning of Section 280G(b) 280G of the CodeCode and the regulations promulgated thereunder) a waiver of such person’s 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” that would not be deductible under Section 280G of the Code and (iib) solicit seek the approval of its shareholders of any Waived 280G Benefits, stockholders who are entitled to vote in a manner that complies with Sections 280G(b)(5)(A)(ii) and Section 280G(b)(5)(B) of the Code and Treasury Regulation Section 1.280G-1, which shall include adequate written disclosure to all stockholders who are entitled to vote prior to such vote, of any such Waived 280G Benefits. Within ten (10) Business Days prior to the Treasury Regulations thereunder. The Closing, the Company shall forward to IIAC the Buyer Parties parachute payment calculations prepared by the Company and/or its advisors. Additionally, at least five (5) days Business Days prior to obtaining the submission Section 280G waivers, and prior to shareholders entitled to vote on seeking such matters copies of all documents prepared by stockholder approval, the Company shall provide drafts of such waivers and such stockholder approval materials to IIAC for its review and comment and the Company shall consider IIAC’s comments thereon in connection with this Section 6.21 for the Buyer Parties’ reviewgood faith. Prior to the Closing, the Company shall deliver to the Buyer Parties IIAC evidence that a vote of the results Company’s stockholders who are entitled to vote was solicited in accordance with the foregoing provisions of such votethis Section 6.26. Such shareholder approvalThe Company shall not be required to fulfill the obligations of this Section 6.26 if, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Payments, such that if such shareholder approval is not obtained, no portion of the Waived 280G Payments shall be paid, payable, received or retained. Notwithstanding the foregoing, prior to the extent that any ContractClosing, agreement, or plan is entered into by any member of the Buyer Group or any of their Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Buyer Arrangements”), the Buyer Group shall provide a copy of such Contract, agreement or plan to counsel for both the Company and the Seller at least fifteen (15) days before the Closing Date IIAC agree and shall cooperate with determine in writing that the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G of the Code; provided, that, in any event, the Company’s failure to include the Buyer Arrangements in the stockholder voting materials described herein, for any reason, will not result in a breach of the covenants obligations set forth in this Section 6.216.26 will not be required.

280G. Prior to To the Closing, extent that the Company shall use commercially reasonable efforts to (i) seek to obtain a waiver from each Person who is a “disqualified individual” (as defined in determines that Section 280G of the CodeCode is applicable to the Transactions, the Company shall request that each Person (each, a “Disqualified Individual”) of to whom any payment or benefit is required or proposed to be made in connection with the Transactions that portion of any payments or economic benefits received or payable to such Person that is reasonably expected to could constitute “parachute payments” (as defined in under Section 280G(b280G(b)(2) of the CodeCode (“Section 280G Payments”) execute a written agreement waiving such Disqualified Individual’s right to receive some or all of such payment or benefit (the “Waived 280G Benefits”), to the extent necessary so that all remaining payments and (ii) solicit benefits applicable to such Disqualified Individual shall not be deemed a parachute payment, and accepting in substitution for the approval of its shareholders of any Waived 280G Benefits, Benefits the right to receive the Waived Benefits only if approved by the Stockholders in a manner that complies with Sections 280G(b)(5)(A)(ii) and Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunderCode. The Company shall forward to the Buyer Parties at least five (5) days prior to the submission to shareholders entitled to vote on such matters copies of all documents prepared by the Company in In connection with this Section 6.21 for the Buyer Parties’ review. Prior to Closing, the Company shall deliver to the Buyer Parties evidence of the results of such vote. Such shareholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Payments, such that if such shareholder approval is not obtained, no portion of the Waived 280G Payments shall be paid, payable, received or retained. Notwithstanding the foregoing, to the extent that any Contractcontract, agreement, or plan is entered into by any member of the Buyer Group Parent or any of their its Affiliates and a disqualified individual Disqualified Individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Buyer Purchaser Arrangements”), the Buyer Group Parent shall provide the Company with a copy of such Contractcontract, agreement or plan prior to the Company and Closing Date. Prior to the Seller at least fifteen (15) days before the Closing Date and shall cooperate with Closing, the Company shall submit the Waived Benefits of each Disqualified Individual who has executed a waiver in good faith in order accordance with this Section 7.05 for approval by the Stockholders and such Disqualified Individual’s right to calculate or determine receive the value (for the purposes of Section 280G Waived Benefits shall be conditioned upon receipt of the Coderequisite approval by the Stockholders in a manner that complies with Section 280G(b)(5)(B) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G of the Code; providedprovided that in no event shall this Section 7.05 be construed to require the Company (or any of its Affiliates) to compel any Disqualified Individual to waive any existing rights under any contract or agreement that such Disqualified Individual has with the Company or any of its Affiliates or any other Person, that, and in no event shall the Company (or any event, the Company’s failure to include the Buyer Arrangements of its Affiliates) be deemed in the stockholder voting materials described herein, for any reason, will not result in a breach of the covenants set forth in this Section 6.217.05 if any such Disqualified Individual refuses to waive any such rights or if the Stockholders fail to approve any Waived Benefits. The Company shall provide Parent and its counsel with a copy of the waiver agreement and the disclosure statement contemplated by this Section 7.05 at least five (5) Business Days prior to delivery to each Disqualified Individual and the Stockholders of such waiver agreement and disclosure statement, respectively, and the Company shall incorporate any changes reasonably requested by Parent or its counsel.

280G. Prior to the Closing, the Company shall use commercially reasonable efforts to (i) seek to obtain a waiver from each Person who is a “disqualified individual” (as defined in Section 280G of the Code) of that portion of any payments or economic benefits received or payable to such Person that is reasonably expected to constitute “parachute payments” (as defined in Section 280G(b) of the Code) (the “Waived 280G Benefits”), and (ii) solicit the approval of its shareholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward to the Buyer Parties at least five (5) days prior to the submission to shareholders entitled to vote on such matters copies of all documents prepared by the Company in connection with this Section 6.21 for the Buyer Parties’ review. Prior to Closing, the Company shall deliver to the Buyer Parties evidence of the results of such vote. Such shareholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Payments, such that if such shareholder approval is not obtained, no portion of the Waived 280G Payments shall be paid, payable, received or retained. Notwithstanding the foregoing, to To the extent that any Contract, agreement, or plan is entered into by any member of necessary to avoid the Buyer Group or any of their Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Buyer Arrangements”), the Buyer Group shall provide a copy of such Contract, agreement or plan to the Company and the Seller at least fifteen (15) days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes application of Section 280G of the CodeCode and the regulations thereunder, as soon as reasonably practicable following the date of this Agreement, but in no event later than five (5) of business days prior to the Closing Date, the Company shall (a) use commercially reasonable efforts to obtain waivers (in form and substance reasonably satisfactory to the Acquiror) from each Person who has a right to any payments and/or benefits as a result of or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement that could would reasonably be expected to constitute a “parachute paymentpayments” under 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; provided), thatand (b) following the execution of the waivers described in clause (a), solicit the approval of the stockholders of Company 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 thereunder, in a manner and with a disclosure document that shall be in form and substance reasonably satisfactory to the Acquiror. At least three (3) business days prior to obtaining any eventwaiver or soliciting stockholder approval, the Company shall provide the Acquiror with copies of all Section 280G-related documents, if any, including, without limitation, any Section 280G analysis prepared by the Company’s failure to include the Buyer Arrangements in , the stockholder voting materials described hereindisclosure document, waivers and stockholder consents, for any reasonthe Acquiror’s review and approval (which approval shall not be unreasonably withheld, will not result in conditioned or delayed) and shall accept all reasonable comments made thereto by the Acquiror. Prior to the Closing Date, if applicable, the Company shall deliver to the Acquiror evidence that a breach vote of the covenants set forth stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 6.215.8 and that either (A) the requisite number of votes were obtained with respect to the Waived 280G Benefits (the “Section 280G Approval”), or (B) that the Section 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made or provided.

280G. Prior to the Closing, the The Company shall use commercially reasonable efforts to (ia) seek to obtain a waiver secure from each Person that is a U.S. taxpayer and who is is, with respect to the Company, a “disqualified individual” (as defined in within the meaning of Section 280G of the Code) of and that portion of has a right to any payments and/or benefits which may separately or economic benefits received or payable to such Person that is reasonably expected to in the aggregate, constitute “parachute payments” (as defined in pursuant to Section 280G(b) 280G of the CodeCode (“Section 280G Payments”) (which determination shall be made by the Company and shall be subject to review and approval by the Buyer, which approval shall not be unreasonably withheld) a waiver of such Person’s rights to any 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 (b) submit to the Company Shareholders for approval (in a manner reasonably satisfactory to the Buyer), and (iiby such Company Shareholders as is required by Section 280G(b)(5)(B) solicit of the approval of its shareholders of Code, any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward to the Buyer Parties at least five (5) days prior to the submission to shareholders entitled to vote on such matters copies of all documents prepared by the Company in connection with this Section 6.21 for the Buyer Parties’ review. Prior to Closing, the Company shall deliver to the Buyer Parties evidence satisfactory to the Buyer that (A) a vote of the results Company Shareholders was solicited in conformance with Section 280G and the regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to any payments and/or benefits that were subject to the vote of such vote. Such shareholder approvalCompany Shareholders (the “280G Shareholder Approval”), if obtainedor (B) the 280G Shareholder Approval was not obtained and, shall establish the disqualified individual’s right to receive or retain as a consequence, the Waived 280G Payments, such that if such shareholder approval is Benefits shall not obtained, no portion of the Waived 280G Payments shall be paid, payable, received made or retained. Notwithstanding the foregoing, provided to the extent that they would cause any Contract, agreement, or plan is entered into by any member of the Buyer Group or any of their Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Buyer Arrangements”), the Buyer Group shall provide a copy of such Contract, agreement or plan amounts to the Company and the Seller at least fifteen (15) days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of constitute Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G of the Code; provided, that, in any event, the Company’s failure to include the Buyer Arrangements in the stockholder voting materials described herein, for any reason, will not result in a breach of the covenants set forth in this Section 6.21Payments.

280G. Prior The Company shall (a) at least five (5) Business Days prior to the Closing, the Company shall use commercially reasonable efforts to (i) seek to obtain a waiver from each Person who is a “disqualified individual” (as defined in Section 280G of the Code) of that portion of to whom any payments or economic benefits received are required or payable proposed to such Person be made in connection with the consummation of the transactions contemplated hereby that is reasonably expected to would constitute “parachute payments” (as defined in under Section 280G(b280G(b)(2) of the CodeCode (each such Person, a “Disqualified Individual”) a written agreement waiving such Disqualified Individual’s right to receive some or all of such payments or benefits (the “Waived 280G Benefits”), to the extent necessary so that all remaining payments and (ii) solicit benefits applicable to such Disqualified Individual shall not be deemed a parachute payment, and accepting in substitution for the approval Waived Benefits the right to receive the Waived Benefits only if approved by the Board of its shareholders Managers of any Waived 280G Benefits, the Company in a manner that complies with Sections 280G(b)(5)(A)(ii) and Section 280G(b)(5)(B) of the Code Code, and the Treasury Regulations thereunder. The Company shall forward to the Buyer Parties (b) at least five (5) days one day after obtaining such waivers and prior to the submission to shareholders entitled to vote on such matters copies Closing, submit for the approval of all documents prepared by the Company Board of Managers of the Company, the Waived Benefits of each Disqualified Individual who has executed a waiver in connection accordance with this Section 6.21 for the Buyer Parties’ review. Prior to Closing5.06, the Company shall deliver to the Buyer Parties evidence of the results of and such vote. Such shareholder approval, if obtained, shall establish the disqualified individualDisqualified Individual’s right to receive or retain the Waived 280G Payments, such that if such shareholder approval is not obtained, no portion Benefits shall be conditioned upon receipt of the Waived 280G Payments shall be paid, payable, received or retained. Notwithstanding requisite approval by the foregoing, to the extent that any Contract, agreement, or plan is entered into by any member Board of Managers of the Company in a manner that complies with Section 280G(b)(5)(B) of the Code. The Company will provide the Buyer Group or any and its counsel with a copy of their Affiliates the waiver agreement and a disqualified individual the disclosure statement prepared in connection with the transactions actions contemplated by this Agreement before Section 5.06 at least three (3) Business Days prior to delivery to each Disqualified Individual and the Closing Date (Board of Managers of the “Buyer Arrangements”), the Buyer Group shall provide a copy Company of such Contractwaiver agreement and disclosure statement, agreement or plan to the Company and the Seller at least fifteen (15) days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G of the Code; provided, that, in any event, the Company’s failure to include the Buyer Arrangements in the stockholder voting materials described hereinrespectively, for any reason, will not result in a breach of the covenants set forth in this Section 6.21review and comment.

280G. Prior to the Closing, the The Company shall use commercially reasonable efforts to (i) seek take all actions necessary to obtain a waiver from each Person who is a “disqualified individual” (as defined in Section 280G of within the Code) of that portion of any payments or economic benefits received or payable to such Person that is reasonably expected to constitute “parachute payments” (as defined in Section 280G(b) of the Code) (the “Waived 280G Benefits”), and (ii) solicit the approval of its shareholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward to the Buyer Parties at least five (5) days prior to the submission to shareholders entitled to vote on such matters copies of all documents prepared by the Company in connection with this Section 6.21 for the Buyer Parties’ review. Prior to Closing, the Company shall deliver to the Buyer Parties evidence of the results of such vote. Such shareholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Payments, such that if such shareholder approval is not obtained, no portion of the Waived 280G Payments shall be paid, payable, received or retained. Notwithstanding the foregoing, to the extent that any Contract, agreement, or plan is entered into by any member of the Buyer Group or any of their Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Buyer Arrangements”), the Buyer Group shall provide a copy of such Contract, agreement or plan to the Company and the Seller at least fifteen (15) days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes meaning of Section 280G of the Code) that shall provide that, if the requisite stockholder approval under Section 280G(b)(5)(B) of any the Code is not obtained, no payments or benefits granted that would separately or contemplated thereinin the aggregate constitute “excess parachute payments” (within the meaning of Section 280G of the Code) with respect to such disqualified individual in the absence of such stockholder approval shall be payable to or retained by such disqualified individual to the extent such excess parachute payments would not be deductible by reason of the application of Section 280G of the Code or would result in the imposition of excise Taxes under Section 4999 of the Code upon such disqualified individual, and (ii) deliver to the Company’s stockholders a disclosure statement that satisfies the disclosure obligations under Section 280G(b)(5)(B) of the Code and solicit the approval of the Company’s stockholders under Section 280G(b)(5)(B). Neither the Company nor any of the Company’s Subsidiaries shall make any such excess parachute payments that are not so approved. The Company shall provide Parent with a copy of the form of such waiver, such disclosure statement, and the stockholder written consent for Parent’s review and approval, which may shall not be paid unreasonably withheld, conditioned or granted in connection delayed, no less than three (3) days prior to delivery to each such disqualified individual and the Company’s stockholders, respectively. Within two (2) Business Days following the date of this Agreement, with respect to each “disqualified individual” of the Company, the Company shall provide to Parent a customary Section 280G analysis prepared by or on behalf of the Company that includes the Company’s good faith estimate of all payments and benefits that could be provided to such disqualified individual as a result of the transactions contemplated by this Agreement that could constitute a (alone or in combination with any other event) and such disqualified individual’s “parachute paymentbase amount” under as defined in Section 280G 280G(b)(3) of the Code; provided, that, in any event. If requested by Parent not less than five (5) Business Days prior to the Closing Date, the Company’s failure Company shall update such analysis to include reflect the Buyer Arrangements in the stockholder voting materials described herein, for any reason, will not result in a breach impact of the covenants set forth in this Section 6.21payments and benefits to be provided by Parent pursuant to any agreement entered into between Parent and a disqualified individual.

280G. Prior to the Closing, the The Company shall (i) use commercially reasonable efforts to (i) seek to obtain solicit a waiver from each Person who is a “disqualified individual” (as defined in Section 280G of within the Code) of that portion of any payments or economic benefits received or payable to such Person that is reasonably expected to constitute “parachute payments” (as defined in Section 280G(b) of the Code) (the “Waived 280G Benefits”), and (ii) solicit the approval of its shareholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward to the Buyer Parties at least five (5) days prior to the submission to shareholders entitled to vote on such matters copies of all documents prepared by the Company in connection with this Section 6.21 for the Buyer Parties’ review. Prior to Closing, the Company shall deliver to the Buyer Parties evidence of the results of such vote. Such shareholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Payments, such that if such shareholder approval is not obtained, no portion of the Waived 280G Payments shall be paid, payable, received or retained. Notwithstanding the foregoing, to the extent that any Contract, agreement, or plan is entered into by any member of the Buyer Group or any of their Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Buyer Arrangements”), the Buyer Group shall provide a copy of such Contract, agreement or plan to the Company and the Seller at least fifteen (15) days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes meaning of Section 280G of the Code) that shall provide that, if the requisite shareholder approval under Section 280G(b)(5)(B) of any the Code is not obtained, no payments or benefits granted that would separately or contemplated thereinin the aggregate constitute “excess parachute payments” (within the meaning of Section 280G of the Code) with respect to such disqualified individual in the absence of such shareholder approval shall be payable to or retained by such disqualified individual to the extent such excess parachute payments would not be deductible by reason of the application of Section 280G of the Code or would result in the imposition of excise Taxes under Section 4999 of the Code upon such disqualified individual, and (ii) deliver to the Company’s shareholders a disclosure statement that satisfies the disclosure obligations under Section 280G(b)(5)(B) of the Code and solicit the approval of the Company’s shareholders under Section 280G(b)(5)(B). No Target Company shall make any such waived excess parachute payments that are not so approved. The Company shall provide Purchaser with a copy of the form of such waiver, such disclosure statement, and the shareholder written consent for Purchaser’s reasonable review and approval, which may shall not be paid unreasonably withheld, conditioned or granted in connection delayed, no less than three (3) days prior to delivery to each such disqualified individual and the Company’s shareholders, respectively. No later than fifteen (15) Business Days prior to the Closing Date, with respect to each “disqualified individual” of the Company, the Company shall provide to Purchaser a customary Section 280G analysis prepared by or on behalf of the Company that includes the Company’s good faith estimate of all payments and benefits that could be provided to such disqualified individual as a result of the transactions contemplated by this Agreement that could constitute a (alone or in combination with any other event) and such disqualified individual’s “parachute paymentbase amount” under as defined in Section 280G 280G(b)(3) of the Code; provided, thatwhich analysis will be subject to Purchaser’s reasonable review and comment to be provided to the Company no later than ten (10) Business Days prior to the Closing Date, which reasonable comments the Company shall consider in any event, good faith (and the Company’s failure to include the Buyer Arrangements waivers and shareholder approval described in the stockholder voting materials described herein, for any reason, will not result in a breach first sentence of the covenants set forth in this Section 6.216.12 shall not be distributed or solicited until such reasonable comments have been provided by Purchaser to the Company or the Purchaser’s time period for providing such comments has elapsed).

280G. Prior If applicable, the Company (or its Affiliate) shall (a) prior to the Closing, the Company shall use commercially reasonable efforts to solicit from any Person who (i) seek to obtain a waiver from each Person who is a “disqualified individual” (as defined in Section 280G of the Code) of that portion of and (ii) has a right or potential right to any payments or economic and/or benefits received or payable to such Person in connection with the transactions contemplated by this Agreement that is reasonably expected could be deemed to constitute “parachute payments” (as defined in pursuant to Section 280G(b) 280G of the Code) , a waiver of all or a portion of such Person’s rights to any such payments and/or benefits, such that all remaining payments and/or benefits applicable to such Person shall not be deemed to be “parachute payments” pursuant to Section 280G of the Code (the “Waived 280G Benefits”), and (iib) solicit for all such obtained waivers, prior to the Closing, submit for approval of by the Company’s (or its shareholders of any Affiliate’s) equityholders the Waived 280G Benefits, to the extent and in a the manner that complies with required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunderCode. The Company (or its Affiliate) shall forward not pay or provide any of the Waived 280G Benefits if such Waived 280G Benefits are not approved by the applicable equityholders as contemplated above. Before soliciting the “disqualified individuals” as provided under this Section 6.6, the Company shall incorporate all of the Purchaser’s reasonable comments to the Buyer Parties at least five (5) days prior Company’s drafts of the consent, waiver, disclosure statement and calculations previously provided to the submission to shareholders entitled to vote on such matters copies of all documents prepared by the Company in connection with this Section 6.21 for the Buyer Parties’ reviewPurchaser or its counsel. Prior to Closingthe Closing Date, the Company shall deliver to the Buyer Parties Purchaser evidence that a vote of the results equityholders of such vote. Such shareholder approval, if obtained, shall establish the disqualified individual’s right Company (or its Affiliate) was solicited in accordance with the foregoing and whether the requisite number of votes of the equityholders of the Company (or its Affiliate) was obtained with respect to receive or retain the Waived 280G Payments, such Benefits or that if such shareholder approval is the vote did not obtained, no portion of pass and the Waived 280G Payments shall be paid, payable, received or retained. Notwithstanding the foregoing, to the extent that any Contract, agreement, or plan is entered into by any member of the Buyer Group or any of their Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Buyer Arrangements”), the Buyer Group shall provide a copy of such Contract, agreement or plan to the Company and the Seller at least fifteen (15) days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may Benefits will not be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G of the Code; provided, that, in any event, the Company’s failure to include the Buyer Arrangements in the stockholder voting materials described herein, for any reason, will not result in a breach of the covenants set forth in this Section 6.21retained.

280G. Prior to the Closing, the Company shall use commercially reasonable best efforts to (i) seek to obtain a an executed waiver from each Person who is a “disqualified individual” (as defined in Section 280G of the Code) of that portion of any payments or economic benefits received or payable to such Person that is reasonably expected to could, individually or in the aggregate, constitute “parachute payments” (as defined in Section 280G(b) of the Code) (the “Waived 280G Benefits”), and (ii) solicit the approval of its shareholders equityholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward to the Buyer Parties at least five (5) seven days prior to distribution to the submission to shareholders entitled to vote on such matters intended recipients, copies of all documents prepared by the Company in connection with this Section 6.21 6.15 (including supporting analysis and calculations, form of waiver agreement, equityholder consent and disclosure statement) for the Buyer’s review and comment, and the Company shall incorporate all reasonable comments received from the Buyer Parties’ reviewon such documents at least two days prior to the distribution to the intended recipients. Prior to the Closing, the Company Archaea shall deliver to the Buyer Parties evidence of the results of such vote. Such shareholder equityholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G PaymentsBenefits, such that if such shareholder equityholder approval is not obtained, no portion of the Waived 280G Payments Benefits shall be paid, payable, received or retained. Notwithstanding For the foregoingavoidance of doubt, with respect to any Buyer Arrangement (defined as any arrangement agreed upon or entered into by, or at the direction of, Buyer and/or its Affiliates, on the one hand, and a “disqualified individual,” on the other hand, on or prior to the extent that any Contract, agreement, or plan Closing Date) of which the Company is entered into by any member of the Buyer Group or any of their Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before aware prior to the Closing Date (the “Buyer Arrangements”)Date, the Buyer Group shall provide a copy of such Contract, agreement or plan to the Company and the Seller at least fifteen (15) days before the Closing Date and shall cooperate with the Company Buyer in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement therein that could reasonably be expected to constitute a “parachute payment” under Section 280G of the Code; provided, that, in any event, the Company’s failure to include the and incorporate such Buyer Arrangements in (defined as any arrangement agreed upon or entered into by, or at the stockholder voting materials direction of, Buyer and/or its Affiliates, on the one hand, and a “disqualified individual,” on the other hand, on or prior to the Closing Date) into its calculations and 280G equityholder approval process described herein, for any reason, will not result in a breach of the covenants set forth in this Section 6.21above.