Common use of Code Section 280G Matters Clause in Contracts

Code Section 280G Matters. Prior to the Effective Time, the Company shall submit to a stockholder vote (along with adequate disclosure satisfying the requirement of Code Section 280G(b)(5)(B)(ii) and any regulations promulgated thereunder) the right of any “disqualified individual” with respect to the Company (within the meaning of Code Section 280G(c)) to receive or retain certain payments that would constitute “parachute payments” (within the meaning of Code Section 280G(b)(2)(A)(i)) and which, when added to the aggregate value of all other “parachute payments” to which the “disqualified individual” is or may become entitled to receive as a result of the Merger or an event that is closely associated therewith, would cause a portion of any other payment to constitute an “excess parachute payments”. With respect to each “parachute payment” submitted for shareholder approval, the individual to whom such payment would be made shall waive his or her right to receive or to retain such payment in a manner that satisfies the shareholder approval requirements of Code Section 280G(b)(5) and any regulations promulgated thereunder to the extent necessary to cause any such payment to not constitute an “excess parachute payment” within the meaning of Code Section 280G(b)(1). The waiver of such rights shall be contained in a separate waiver agreement between the individual and the Company or shall be made a part of the terms of the agreement giving rise to the individual’s right thereto prior to soliciting the vote described in the immediately preceding sentence such that the vote shall, if successful, establish each “disqualified individual’s” right to receive or retain the payment. The Company shall provide or cause to be provided to Buyer, a draft of all stockholder vote related documents, including, but not limited to, any disclosure statements, “disqualified individual” waiver agreements, and/or other agreements establishing the individual’s waiver of the right to receive or retain such payments. The Company shall incorporate any reasonable comments that are made by Buyer.

Code Section 280G Matters. Prior to the Effective Time, the Company and the Company Subsidiaries shall submit to a stockholder vote (along with adequate disclosure satisfying the requirement requirements of Code Section 280G(b)(5)(B)(ii) of the Code and any regulations promulgated thereunder) the right of any “disqualified individual” with respect to the Company or any Company Subsidiary (within the meaning of Code Section 280G(c)) of the Code) to receive or retain certain payments any payment that would constitute a “parachute paymentspayment” (within the meaning of Code Section 280G(b)(2)(A)(i)) of the Code) and which, when added to the aggregate value of all other “parachute payments” as to which the “disqualified individual” is or may become entitled to receive as a result of the Merger or an event that is closely associated therewith, would cause a portion of any other payment to constitute an “excess parachute payments”. With respect to each “parachute payment” submitted for shareholder approval, the such individual to whom such payment would be made shall waive waives his or her right to receive or to retain such payment rights as described in the following sentence in a manner that satisfies the shareholder approval requirements of Code Section 280G(b)(5) of the Code and any regulations promulgated thereunder to the extent necessary to cause any such payment to not constitute an “excess parachute payment” within the meaning of Code Section 280G(b)(1)) of the Code. The waiver To the extent that any such “disqualified individual” has the right to receive payments that could constitute “parachute payments” and elects to waive such rights, the Company and the Company Subsidiaries, as applicable, shall obtain waivers of such rights shall be contained in a separate waiver agreement between the individual and the Company or shall be made a part of the terms of the agreement giving rise to the individual’s right thereto prior to soliciting the vote described in the immediately preceding sentence such that the vote shall, if successful, establish each “disqualified individual’s” ’s right to receive or retain the payment. The Company and the Company Subsidiaries shall provide provide, or cause to be provided provided, to Buyer, Purchaser a draft of all stockholder shareholder vote related documents, including, but not limited to, any disclosure statements, “documents and disqualified individual” waiver agreements, and/or other agreements establishing the individual’s waiver of the right to receive or retain such paymentsindividual waivers. The Company and the Company Subsidiaries shall incorporate any reasonable comments that are made by BuyerPurchaser. Purchaser shall reasonably cooperate with the Company in connection with the preparation of such shareholder vote related documents.

Code Section 280G Matters. Prior to the Effective Time, the Company shall submit to a stockholder vote (along with adequate disclosure satisfying the requirement requirements of Code Section 280G(b)(5)(B)(ii) and any regulations promulgated thereunder) the right of any “"disqualified individual” " with respect to the Company (within the meaning of Code Section 280G(c)) to receive or retain certain payments any payment that would constitute “a "parachute payments” payment" (within the meaning of Code Section 280G(b)(2)(A)(i)) and which, when added to the aggregate value of all other “parachute payments” as to which the “disqualified individual” is or may become entitled to receive as a result of the Merger or an event that is closely associated therewith, would cause a portion of any other payment to constitute an “excess parachute payments”. With respect to each “parachute payment” submitted for shareholder approval, the such individual to whom such payment would be made shall waive waives his or her right to receive or to retain such payment rights as described in the following sentence in a manner that satisfies the shareholder approval requirements of Code Section 280G(b)(5) and any regulations promulgated thereunder to the extent necessary to cause any such payment to not constitute an “"excess parachute payment” " within the meaning of Code Section 280G(b)(1). The waiver To the extent that any such "disqualified individual" has the right to receive payments that could constitute "parachute payments" and elects to waive such rights, the Company shall obtain waivers of such rights shall be contained in a separate waiver agreement between the individual and the Company or shall be made a part of the terms of the agreement giving rise to the individual’s right thereto prior to soliciting the vote described in the immediately preceding sentence such that the vote shall, if successful, establish each “"disqualified individual’s” 's" right to receive or retain the payment. The Company shall provide provide, or cause to be provided provided, to Buyer, Parent a draft of all stockholder vote related documents, including, but not limited to, any disclosure statements, “documents and "disqualified individual” waiver agreements, and/or other agreements establishing the individual’s waiver of the right to receive or retain such payments" waivers. The Company shall incorporate any reasonable comments that are made by BuyerParent. Parent shall reasonably cooperate with the Company in connection with the preparation of such stockholder vote related documents.

Code Section 280G Matters. Prior to the Effective TimeClosing, to the Company shall submit to a stockholder vote (along with adequate disclosure satisfying the requirement of Code Section 280G(b)(5)(B)(ii) and extent that any regulations promulgated thereunder) individual has the right of any “disqualified individual” with respect to the Company (within the meaning of Code Section 280G(c)) to receive any payments or retain certain payments benefits that would could be deemed to constitute “parachute payments” (within the meaning of Code Section 280G(b)(2)(A)(i280G of the Code) in connection with the consummation of the transactions contemplated by this Agreement (each, a “Disqualified Individual”), then Company shall (a) solicit, and use reasonable efforts to obtain and deliver to Parent, prior to the initiation of the shareholder approval procedure under clause (b), a waiver, in a form reviewed and reasonably approved by Parent, from each Disqualified Individual of such Disqualified Individual’s rights to all such parachute payments applicable to such Disqualified Individual (the “Waived Parachute Payments”) so that all remaining payments or benefits applicable to such Disqualified Individual shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G of the Code) and which(b) as soon as practicable following delivery of any such executed waivers to Parent, when added prepare and distribute to the aggregate value applicable Company Equityholders a disclosure statement providing adequate disclosure (within the meaning of Section 280G of the Code) of all other potential parachute payments that may be received by the Disqualified Individual(s) and submit to such Company Equityholders for approval (in a manner reasonably satisfactory to Parent) by such number of Company Equityholders, in a manner that meets the requirements of Section 280G(b)(5)(B) of the Code, any Waived Parachute Payments such that, if approved by the requisite Company Equityholders, such Waived Parachute Payments shall not be deemed to be “parachute payments” to which the “disqualified individual” is or may become entitled to receive as a result under Section 280G of the Merger or an event Code (the foregoing actions, a “280G Shareholder Vote”). Prior to the Closing, if a 280G Shareholder Vote is required, Company shall deliver to Parent evidence reasonably satisfactory to Parent, that is closely associated therewith, would cause either a portion 280G Shareholder Vote was solicited in conformance with Section 280G of any other payment to constitute an “excess parachute payments”. With respect to each “parachute payment” submitted for shareholder approval, the individual to whom such payment would be made shall waive his or her right to receive or to retain such payment in a manner that satisfies the shareholder approval requirements of Code Section 280G(b)(5) and any regulations promulgated thereunder to the extent necessary that there are any Waived Parachute Payments and the requisite approval of the Company Equityholders was obtained with respect to cause any Waived Parachute Payments that were subject to the vote of the Company Equityholders (the “Section 280G Approval”) or that there were no Waived Parachute Payments or that the Section 280G Approval was not obtained and, as a consequence, pursuant to the waivers described in clause (a) of the preceding sentence, such payment Waived Parachute Payments shall not be made or provided. The form of the waiver, the disclosure statement, any other materials to be submitted to the Company Equityholders in connection with the Section 280G Approval and the calculations related to the foregoing shall be subject to advance review and reasonable approval by Parent, which approval shall not constitute an be unreasonably withheld, conditioned or delayed, and Company shall incorporate all reasonable comments of Parent thereto. Parent shall provide Company with a description of all payments and benefits that would be paid or provided to any Disqualified Individual pursuant to any agreement or arrangement negotiated by, or entered into with, Parent or any of its Affiliates and any Disqualified Individual on or prior to the Closing Date that could be treated as “excess parachute paymentpayments” within the meaning of under Code Section 280G(b)(1). The waiver 280G in connection with the transactions contemplated by this Agreement, along with the value or estimated amount of such rights shall be contained payments and benefits (as determined in a separate waiver agreement between the individual and the Company or shall be made a part of the terms of the agreement giving rise accordance with Code Section 280G) to the individual’s right thereto prior to soliciting the vote described include in the immediately preceding sentence Company’s Code Section 280G analysis, with all such that the vote shall, if successful, establish each “disqualified individual’s” right to receive or retain the payment. The Company shall provide or cause information to be provided by Parent as soon as reasonably practicable upon request by Company. Nothing in this Section 7.5 shall require any Disqualified Individual to Buyer, execute a draft waiver agreement described in this Section 7.5 or shall require any specific outcome of all stockholder vote related documents, including, but not limited to, any disclosure statements, “disqualified individual” waiver agreements, and/or other agreements establishing the individual’s waiver of the right to receive or retain such payments. The Company shall incorporate any reasonable comments that are made by Buyer280G Shareholder Vote.