Common use of Parachute Payment Waivers Clause in Contracts

Parachute Payment Waivers. The Company shall obtain and deliver to Parent, prior to the initiation of the requisite shareholder approval procedure under Section 5.7, a Parachute Payment Waiver, in substantially the form attached hereto as Exhibit E (“Parachute Payment Waiver”), from each Person who the Company reasonably believes is, with respect to the Company and/or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), as determined immediately prior to the initiation of the requisite shareholder approval procedure under Section 5.7, and who might otherwise have, receive or have the right or entitlement to receive a parachute payment under Section 280G of the Code as a result of (a) the accelerated vesting of such Person’s Company Options in connection with the Merger and/or the termination of employment or service with the Company, the Surviving Corporation, Parent or any Subsidiary before, upon or following the Merger, (b) any Change of Control Payments and/or (c) the receipt of any Company Options or Company Capital Stock within the 12-month period ending on the date on which the Effective Time occurs, pursuant to which each such Person shall agree to waive any and all right or entitlement to the accelerated vesting, payments, benefits, options and stock referred to in clauses (a), (b) and (c) to the extent the value thereof exceeds 2.99 times such Person’s base amount determined in accordance with Section 280G of the Code and the regulations promulgated thereunder, unless the requisite shareholder approval of such accelerated vesting, payments, benefits, options and stock is obtained pursuant to Section 5.7.

Parachute Payment Waivers. The Company (a) TBO shall obtain and deliver to Parenthave obtained, prior to seeking the initiation requisite TBO Shareholder approval pursuant to Section 6.11, a waiver of the requisite shareholder approval procedure right to receive payments that could constitute “parachute payments” under Section 5.7, 280G of the Code and regulations promulgated thereunder (a Parachute Payment Waiver, in substantially the form attached hereto as Exhibit E (“Parachute Payment Waiver”), in a form reasonably acceptable to Parent, from each Person who the Company whom TBO and/or Parent reasonably believes is, with respect to the Company and/or any ERISA AffiliateTBO, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), as determined immediately prior to the initiation of seeking the requisite shareholder TBO Shareholder approval procedure under pursuant to Section 5.76.11, and who whom TBO and/or Parent believes might otherwise havereceive, receive have received, or have the right or entitlement to receive a any parachute payment under Section 280G of the Code as a result of (a) Code, and TBO shall have delivered each such Parachute Payment Waiver to Parent on or before the accelerated vesting of such Person’s Company Options in connection with the Merger and/or the termination of employment or service with the Company, the Surviving Corporation, Parent or any Subsidiary before, upon or following the Merger, Closing Date. (b) any Change TBO shall use its commercially reasonable efforts to obtain the approval by such number of Control Payments and/or (cTBO Shareholders as is required by the terms of Section 280G(b)(5)(B) of the receipt Code so as to render the parachute payment provisions of any Company Options or Company Capital Stock within the 12-month period ending on the date on which the Effective Time occurs, pursuant to which each such Person shall agree to waive any and all right or entitlement to the accelerated vesting, payments, benefits, options and stock referred to in clauses (a), (b) and (c) to the extent the value thereof exceeds 2.99 times such Person’s base amount determined in accordance with Section 280G of the Code inapplicable to any and all payments and/or benefits provided pursuant to contracts or arrangements that, in the absence of the executed Parachute Payment Waivers by the affected Persons under Section 6.18(b) above, might otherwise 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 of the Code, with such shareholder approval to be obtained in a manner which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the Code and the regulations promulgated Treasury Regulations thereunder, unless the requisite shareholder approval including Q-7 of Section 1.280G-I of such accelerated vestingTreasury Regulations. TBO shall forward to Parent, paymentsand allow Parent to review and comment upon, benefitsprior to submission to the TBO Shareholders, options copies of all material documents prepared for purposes of complying with this provision and stock is obtained pursuant to Section 5.7shall consider any such comments in good faith.

Parachute Payment Waivers. The Company shall obtain and deliver to Parent, prior to the initiation of the requisite shareholder stockholder approval procedure under Section 5.77.3(h), a Parachute Payment Waiver, in substantially the form attached hereto as Exhibit E G (“Parachute Payment Waiver”), from each Person who the Company reasonably believes is, with respect to the Company, any Company Subsidiary and/or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), as determined immediately prior to the initiation of the requisite shareholder stockholder approval procedure under Section 5.7procedure, and who might otherwise have, receive or have the right or entitlement to receive a parachute payment under Section 280G of the Code as a result that might otherwise result, separately or in the aggregate, in the payment of (a) the accelerated vesting of such Person’s Company Options in connection with the Merger any amount and/or the termination of employment or service with the Company, the Surviving Corporation, Parent or any Subsidiary before, upon or following the Merger, (b) any Change of Control Payments and/or (c) the receipt provision of any Company Options or Company Capital Stock within benefit that would not be deductible by reason of Section 280G of the 12-month period ending on the date on which the Effective Time occursCode, pursuant to which each such Person shall agree to waive any and all right or entitlement to the accelerated vesting, payments, benefits, options and stock referred to in clauses (a), (b) and (c) such payments or benefits to the extent the value thereof equals or exceeds 2.99 three times such Person’s base amount determined in accordance with Section 280G of the Code and the regulations promulgated thereunder, unless the requisite shareholder stockholder approval is obtained. As contemplated by Section 7(l), the Company shall use its commercially reasonable efforts to obtain the approval required by the terms of Section 280G(b)(5)(B) so as to render the parachute payment provisions of Section 280G of the Code inapplicable to any and all such accelerated vesting, payments, payments or benefits, options with such stockholder vote to be obtained in a manner which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and stock is obtained pursuant to Section 5.7the regulations promulgated thereunder.

Parachute Payment Waivers. The Company shall obtain and deliver to Parent, prior to the initiation of the requisite shareholder stockholder approval procedure under Section 5.75.9, a Parachute Payment Waiver, in substantially the form attached hereto as Exhibit E and substance reasonably acceptable to Parent (a “Parachute Payment Waiver”), from each Person who the Company reasonably believes is, with respect to the Company and its subsidiary, and/or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), as determined immediately prior to the initiation of the requisite shareholder stockholder approval procedure under Section 5.75.9, and who might otherwise have, receive or have the right or entitlement to receive a parachute payment under Section 280G of the Code as a result of (a) the accelerated vesting of such Person’s Company Options benefits or payments in connection with the Merger and/or the termination of employment or service with the Company, the Surviving Corporation, Parent or any Subsidiary of their Affiliates before, upon or following the Merger, (b) any Change of Control Payments and/or (c) the receipt of any Company Options or restricted Company Capital Stock under the Company Equity Compensation Plan within the 12-month period ending on the date on which the Effective Time occursoccurs (the “280G Amounts”), pursuant to which each such Person shall agree to waive any and all right or entitlement to the accelerated vesting, payments, benefits, options such benefits and stock referred to in clauses (a), (b) and (c) payments to the extent the value thereof exceeds 2.99 times such Person’s base amount, as such value and such base amount shall be determined in accordance with Section 280G of the Code and the regulations promulgated thereunder, unless the requisite shareholder stockholder approval of such accelerated vesting, payments, benefits, options and stock is obtained pursuant to Section 5.75.11.