Common use of Section 280G Approval Clause in Contracts

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Payments.

Section 280G Approval. To The applicable members of the extent that Company Group shall (if applicable), as soon as practicable following the date of this Agreement and in no event later than Business Day prior to the Closing Date, (a) use their commercially reasonable efforts to secure from each Person who has a right to any payments or benefits would or potential right to any payments or benefits (including, without limitation, under any Company Plan) that could be deemed to constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments of the Code) a waiver, subject to the approval described in clause (b), of such Person’s rights to all of such parachute payments that are equal to or in excess of three (3) times such Person’s “base amount” (within the meaning of Section 280G of the Code) less one dollar (the “Waived 280G Benefits”) and (b) solicit stockholder the approval of some portion the stockholders of the Potential Parachute Payments such thatapplicable member of the Company Group to the extent and in the manner required under Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, of any Waived 280G Benefits. No later than the Business Day prior to the Closing Date, the Company shall, if stockholder approval is obtainedapplicable, there will be no parachute payments. The Company shall provide copies of deliver to the calculations, waivers and all materials Buyer a written notice that either (A) the requisite vote was obtained with respect to be distributed in connection with the Waived 280G Benefits (the “280G Approval”) or (B) the 280G Vote Approval was not later obtained and, as a consequence, the Waived 280G Benefits have not been and shall not be made or provided, and any previously paid or provided Waived 280G Benefits shall be returned or recovered. Not less than five (5) Business Days prior to the execution distributing any material relating to such vote (including any waivers, consents or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closingdisclosure statements), the Company shall, if applicable, provide the Buyer with drafts of such materials for the Buyer’s reasonable review and comment and the Company Group shall deliver reasonably consider any comments made by the Buyer prior to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of obtaining the Potential Parachute Payments was obtained in conformance with waivers and soliciting the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retainedvote. The Buyer shall reasonably cooperate with provide to the Company in connection with the determination of any parachute payments subject to this Section 8.16Company, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments no less than fifteen (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (715) Business Days prior to the Closing. Neither Closing Date, any arrangements entered into at the direction of the Buyer or between the Buyer and its Affiliates, on the one hand, and any disqualified individual, on the other hand (or the key terms thereof) (the “Buyer Arrangements”), and the Company nor Sellerand the Buyer shall cooperate in good faith with respect to calculating the value of such arrangements; provided, nor any of their respective Affiliateshowever, will be deemed that if such Buyer Arrangements are not provided or are provided to be in breach the Company fewer than fifteen (15) days prior to the Closing Date, compliance with the remainder of this Section 8.16 7.6 shall be determined as if such Buyer Arrangements had not been entered into. Nothing in this Section 7.6 shall be construed as requiring any specific outcome to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsvote described herein.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder The Target Company shall (“Section 280G”a) in connection with the consummation of the Contemplated Transactions no later than ten (the “Potential Parachute Payments”), 10) Business Days prior to the ClosingClosing Date, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments solicit from each person who is a “disqualified individual” (within the meaning of Section 280G(c) of the Code) who would otherwise be entitled to receive any payment or benefits that would constitute a “parachute payment” (within the meaning of Section 280G(b)(2)(A) of the Code) a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G Benefits”) so that all remaining payments and/or benefits, if any, shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G and who has Potential Parachute Payments of the Code) and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distributionClosing Date, as applicablewith respect to each individual who agrees to the waivers described in clause (a), submit to a vote in accordance with Section 280G(b)(5)(B)(i) of the Code and the regulations promulgated thereunder (along with adequate disclosure satisfying the requirements of Section 280G(b)(5)(B)(ii) of the Code and the regulations promulgated thereunder) the right of any such “disqualified individual” to receive the Waived 280G Benefits (the “280G Vote”). The Target Company shall provide drafts of such waivers and approval materials, and any related calculations, to the Acquirer for Buyer’s (or Buyer’s designee’s) its reasonable review and commentapproval (which approval will not be unreasonably withheld, conditioned or delayed) no later than five (5) Business Days prior to soliciting such waivers and soliciting such approval. If any of the Waived 280G Benefits fail to be approved as contemplated above, such Waived 280G Benefits shall consider in good faith for incorporation all of Buyer’s (not be made or Buyer’s designee’s) comments theretoprovided. Prior to the Closing, the Target Company shall deliver to Buyer the Acquirer evidence reasonably satisfactory acceptable to Buyer the Acquirer that stockholder approval of the Potential Parachute Payments a 280G Vote was obtained solicited in conformance accordance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach foregoing provisions of this Section 8.16 6.8 and that either (i) the requisite number of votes of the Target Company’s equityholders was obtained with respect to the extent that the Waived 280G Vote does not meet the requirements of Benefits in accordance with Section 280G(b)(5)(B280G(b)(5)(B)(i) of the Code and the Treasury Regulations regulations promulgated thereunder due to Buyer’s breach of (the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute PaymentsApproval”) or (ii) the 280G Approval was not obtained, such Potential Parachute Payments and, as a consequence, the Waived 280G Benefits shall not be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsor provided.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable Confidential Treatment Requested by Outdoor Products Spinco Inc. Pursuant to 17 C.F.R. Section 200.83 requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Payments.

Section 280G Approval. To As soon as reasonably practicable following the extent that date hereof, but in no event later than five Business Days prior to the Closing Date, the Company shall (a) solicit from each Person who has a right to any payments and/or benefits or benefits potential right to any payments and/or benefits, as a result of or in connection with the transactions contemplated herein that would be deemed to constitute “parachute payments,” as such term is defined in (within the meaning of Code Section 280G of the Code and the Treasury Regulations regulations promulgated thereunder (hereafter, “Section 280G”)) in connection with the consummation a waiver of the Contemplated Transactions such Person’s rights to any such payments and/or benefits (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section Waived 280G with respect Benefits”) applicable to the Potential Parachute Payments such Person so that all remaining payments and/or benefits applicable to such Person shall not be deemed to be “excess parachute payments” (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments G); and (b) solicit stockholder approval if a waiver of some portion of the Potential Parachute Payments such that, if stockholder approval Section 280G is obtained, there will be no parachute paymentssolicit, at least three Business Days prior to the Closing Date, the approval of the securityholders of the Company, to the extent and in the manner required under Code Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) and the regulations promulgated thereunder, in order to pay any Waived 280G Benefits. The Company shall provide copies drafts of such waivers and such securityholder approval materials to Buyer for its review, comment and approval prior to obtaining such waivers and soliciting such approval. The Company shall not pay any of the calculations, waivers and all materials to be distributed in connection with the Waived 280G Vote Benefits if such payment is not later than five (5) Business Days prior to approved by the execution or distribution, securityholders as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments theretocontemplated above. Prior to the ClosingClosing Date, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval a vote of the Potential Parachute Payments securityholders was solicited in accordance with the provisions of this Section 4.14 and that either (x) the requisite number of securityholder votes was obtained in conformance with respect to the applicable requirements of Section Waived 280G, G Benefits (the “280G Approval”); or that such stockholder approval (y) the 280G Approval was not obtained, and and, as a consequence consequence, the Potential Parachute Payments Waived 280G Benefits have not been and shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsprovided.

Section 280G Approval. To If required to avoid the extent that any payments imposition of Taxes under Section 4999 of the Code or benefits would constitute “parachute payments,” as such term is defined in the loss of deduction under Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) with respect to any payment or benefit in connection with the consummation of transactions contemplated by this Agreement, the Contemplated Transactions Company will (the “Potential Parachute Payments”), a) no later than two Business Days prior to the ClosingClosing Date, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments solicit from each person who is a “disqualified individual” (as defined in Section 280G(c) of the Code) who may receive any payment or benefits that would constitute a “parachute payment” (within the meaning of Section 280G(b)(2)(a) of the Code) a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G Benefits” and, each such waiver, a “280G Waiver”) so that all remaining payments and/or benefits, if any, shall not be “excess parachute payments” (within the meaning of Section 280G and who has Potential Parachute Payments of the Code) and (b) solicit stockholder approval no later than one (1) Business Day prior to the Closing Date, with respect to each individual who provides a duly executed 280G Waiver, submit to a shareholder vote (along with adequate disclosure satisfying the requirements of some portion Section 280G(b)(5)(B)(ii) of the Potential Parachute Payments Code and any regulations promulgated thereunder) the rights of any such that, if stockholder approval is obtained, there will be no parachute payments“disqualified individual” to receive the Waived 280G Benefits. The Prior to soliciting 280G Waivers from the “disqualified individuals,” the Company shall provide copies drafts of such waivers and disclosure materials to Acquirer for its review and approval (which approval will not be unreasonably withheld, conditioned or delayed). If any of the calculations, waivers and all materials Waived 280G Benefits fail to be distributed in connection with approved by the Company’s shareholder as contemplated above, such Waived 280G Vote Benefits shall not later than five (5) Business Days prior to the execution be made or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments theretoprovided. Prior to the ClosingEffective Time, the Company shall deliver to Buyer Acquirer evidence reasonably satisfactory to Buyer Acquirer that stockholder approval a vote of the Potential Parachute Payments Company’s shareholders was solicited in accordance with the foregoing provisions of this Section 7.14 and that either (i) the requisite number of votes of the Company’s shareholders was obtained in conformance with respect to any Waived 280G Benefits (the applicable requirements of Section “280G, G Approval”) or that such stockholder approval (ii) the 280G Approval was not obtained, and and, as a consequence the Potential Parachute Payments consequence, any Waived 280G Benefits shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsprovided.

Section 280G Approval. To The Company shall, or shall cause Shine to, as soon as practicable following the extent that date of this Agreement and in no event later than 10 Business Days prior to the Closing Date, (i) use its reasonable best efforts to secure from each Person who has a right to any payments or benefits or potential right to any payments or benefits that would be deemed to constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such thatCode) a waiver, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior subject to the execution or distribution, as applicableapproval described in clause (ii), of such materials, for BuyerPerson’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation rights to all of Buyersuch parachute payments that are equal to or in excess of three times such Person’s “base amount” (or Buyer’s designee’swithin the meaning of Section 280G of the Code) comments thereto. Prior to less one dollar (the Closing, “Waived 280G Benefits”) and (ii) solicit the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements stockholders of Section 280GShine, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that and in the 280G Vote does not meet the requirements of manner required under Section 280G(b)(5)(B) of the Code and the Treasury Regulations regulations promulgated thereunder due thereunder, of any Waived 280G Benefits. No later than five Business Days prior to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoingClosing Date, in the event the Company is unable shall, or shall cause Shine to, deliver to obtain Driven (and to Driven’s legal counsel) a waiver written certification that either (A) the requisite vote was obtained with respect to the Waived 280G Benefits (the “280G Approval”) or (B) the 280G Approval was not obtained and, as a consequence, any Waived 280G Benefits have not been and shall not be made or provided, and any previously paid or provided Waived 280G Benefits shall be returned or recovered. Not less than three Business Days prior to distributing any material relating to such vote (including any waivers, consents or disclosure statements), the Company shall, or shall cause Shine to, provide Driven with drafts of the right such materials (which shall be subject to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Driven’s reasonable review and comment) along with its analysis under Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments of the Code. Nothing in this Section 5.9 shall be made construed as requiring any specific outcome to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsvote described herein.

Section 280G Approval. To As soon as reasonably practicable following the extent that date hereof, but in no event later than five Business Days prior to the Closing Date, AP Hostess Holdings shall (a) solicit, and use commercially reasonable efforts to secure, from each Person who has a right to any payments and/or benefits or potential right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would be deemed to constitute “parachute payments,” as such term is defined in (within the meaning of Section 280G of the Code and the Treasury Regulations regulations promulgated thereunder (“Section 280G”)) in connection with the consummation a waiver of the Contemplated Transactions such Person’s rights to any such payments and/or benefits, including any potential payments and/or benefits (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section Waived 280G with respect Benefits”) applicable to the Potential Parachute Payments such Person so that all remaining payments and/or benefits applicable to such Person shall not be deemed to be “excess parachute payments” (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments G); and (b) solicit stockholder approval if a waiver of some portion of the Potential Parachute Payments such that, if stockholder approval Section 280G is obtained, there will be no parachute payments. The Company shall provide copies of the calculationssolicit, waivers and all materials use commercially reasonable efforts to be distributed in connection with the 280G Vote not later than five (5) secure, at least three Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the ClosingClosing Date, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280Gits stockholders, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that and in the 280G Vote does not meet the requirements of Section manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations regulations promulgated thereunder due thereunder, in order to Buyer’s breach pay any Waived 280G Benefits. AP Hostess Holdings shall provide drafts of such waivers and such stockholder approval materials, including disclosure documents, to the Buyer for its review and comment at least three Business Days prior to obtaining such waivers and soliciting such approval. None of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section Waived 280G and who has Potential Parachute Payments, such Potential Parachute Payments Benefits shall be made if they are not approved by the stockholders of AP Hostess Holdings as contemplated above. Prior to such disqualified individual the Closing Date, AP Hostess Holdings shall deliver to the Buyer evidence that a vote of its stockholders was solicited in accordance with the terms provisions of this Section 6.22 and that either (i) the Contract related requisite number of stockholder votes was obtained with respect to such Potential Parachute Paymentsthe Waived 280G Benefits (the “280G Approval”); or (ii) that the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits have not been and shall not be made or provided.

Section 280G Approval. To As soon as reasonably practicable after the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G date of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior to the Closingthis Agreement, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect submit to the Potential Parachute Payments (the “280G Vote”)Company Shareholders for their approval, including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet meeting the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoingapplicable rulings and final regulations thereunder, any payments and/or benefits that may, separately or in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” aggregate, constitute "parachute payments," within the meaning of Section 280G(b)(2) of the Code and the applicable rulings and final regulations thereunder ("SECTION 280G and who has Potential Parachute PaymentsPAYMENTS"), such Potential Parachute that the deduction of such payments and benefits will not be limited by the application of Section 280G of the Code and the applicable rulings and final regulations thereunder. Prior to the Effective Time, the Company shall deliver to the Acquiror a duly executed certification (the "280G CERTIFICATION") that (a) a vote of the Company Shareholders was solicited in conformance with Section 280G(b)(5)(B) of the Code and the applicable rulings and final regulations thereunder and the requisite approval of the Company Shareholders was obtained with respect to any Section 280G Payments that were subject to such vote of the Company Shareholders (which certification shall be made to accompanied by such disqualified individual in accordance with a true and correct copy of such Company Shareholders' approval), or (b) the terms approval of the Contract related Company Shareholders of Section 280G Payments was not obtained and, as a consequence, that such payments and/or benefits shall not be made or provided, pursuant to the waivers of those payments and/or benefits duly executed by the affected individuals prior to the vote of the Company Shareholders, in substantially the form attached hereto as Exhibit E ("PARACHUTE PAYMENT WAIVER") (which certification shall be accompanied by a true and correct copies of such Potential Parachute Paymentsexecuted waivers). The Company shall forward to the Acquiror prior to submission to the Company Shareholders copies of all documents prepared by Company in connection with this Section 5.13.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior Prior to the ClosingEffective Time, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using will use its commercially reasonable efforts to (a) obtain waivers (the “Waivers of Parachute Payments”) from each Person who has a waiver of the right to receive Potential Parachute Payments from each person who is any payments and/or benefits as a result of or in connection with the transactions contemplated by this Agreement that would be deemed to constitute “disqualified individualparachute payments” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments Code and as to which such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies Person waives his or her rights to some or all of such payments and/or benefits (the calculations, waivers and all materials to be distributed in connection with the “Waived 280G Vote not later than five (5Benefits”) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such Person so that no remaining payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior and/or benefits applicable to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, such Person will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individualparachute payments” (within the meaning of Section 280G of the Code), and who has Potential Parachute Payments, such Potential (b) no sooner than the day after the day all the Waivers of Parachute Payments shall with respect to which the approval of payments and/or benefits by the Company stockholders is to be made solicited become effective, solicit the approval of the stockholders of the Company to the extent and in the manner required under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits. Prior to soliciting such disqualified individual waivers and approvals, the Company will provide the final drafts of such waivers and such stockholder approval materials to Parent for Parent’s review and comment, and the Company will consider reasonable comments of Parent thereon and consult with the Parent with respect thereto, in each case in good faith, including timely providing any material supporting information, calculations and documents. Prior to the Closing Date, the Company will deliver to Parent evidence that a vote of the stockholders of the Company was solicited in accordance with the terms foregoing provisions of this Section 5.08. For the Contract related avoidance of doubt, the Company will not be required to such Potential conduct a stockholder vote pursuant to this Section 5.08 unless it is able to obtain Waivers of Parachute Payments.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior Prior to the ClosingClosing Date, the Company shall conduct a vote in accordance with the requirements of Section 280G (a) secure from each Person who is, with respect to the Potential Parachute Payments (the “280G Vote”)Company, including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” (within the meaning of Section 280G and who of the Code) that has Potential Parachute Payments a right to any payments and/or benefits that would be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code) 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) solicit stockholder the approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior Stockholders pursuant to the execution or distributionRequired Company Stockholder Vote, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that and in the 280G Vote does not meet the requirements of Section manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations regulations promulgated thereunder due thereunder, in order to Buyer’s breach pay any Waived 280G Benefits. Target shall provide drafts of such waivers and such stockholder approval materials, together with such background materials and calculations used to determine whether any payment and/or benefit constitutes a parachute payment, to the Parent for its review and comment at least three (3) business days prior to obtaining such waivers and soliciting such approval, and the Company shall include any changes or comments thereto reasonably requested by the Parent. Neither the Company nor any of its Affiliates shall pay any of the immediately preceding sentence. Notwithstanding the foregoing, in the event Waived 280G Benefits if such payment is not approved by the Company is unable Stockholders pursuant to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute PaymentsRequired Company Stockholder Vote as contemplated above.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder The Company shall, no later than three (“Section 280G”3) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), days prior to the ClosingClosing Date, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using use commercially reasonable efforts (which shall not require payment of consideration from the Company to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a any “disqualified individual” within the meaning of Code Section 280G(c) and the regulations thereunder) to (a) secure from each Person who is a disqualified individual and has a right to any payments and/or benefits or potential right to any payments and/or benefits under any Company Benefit Plan or otherwise that could reasonably be deemed to constitute “parachute payments” within the meaning of Code Section 280G and who has Potential Parachute (“Section 280G Payments”) a waiver, subject to the approval described in clause (b), of such Person’s rights to the portion or all of such Section 280G Payments that exceed 2.99 times such Person’s “base amount” (as defined in Code Section 280G(b)(3)) (such portion, the “Waived 280G Benefits”) and (b) solicit stockholder the approval of some portion the stockholders of the Potential Parachute Payments such thatCompany, to the extent and in the manner required under Code Section 280G(b)(5)(B) and the regulations promulgated thereunder, of any Waived 280G Benefits. Any of the Waived 280G Benefits which fail to be approved by the stockholders of the Company as contemplated above shall not be made or provided. Prior to the Closing Date, if stockholder approval is the requisite waivers are obtained, there will the Company shall deliver to Buyer evidence that a vote of the Company’s stockholders was solicited in accordance with the foregoing provisions of this Section 7.10 and that either (i) the requisite number of stockholder votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (ii) that the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits have not been and shall not be no parachute paymentsmade or provided. The At least three (3) days prior to distributing any materials to the stockholders of the Company or any other Person in connection with its obligations under this Section 7.10 the Company shall provide copies of the calculations, waivers and all such materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, Buyer for Buyer’s (or Buyer’s designee’s) its review and comment, and shall consider in good faith for incorporation all and not unreasonably omit any of Buyer’s requested changes or comments (or Buyer’s designee’s) and Buyer agrees to provide any such comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval promptly after its receipt of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsmaterials).

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” The Acquired Companies, as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder applicable, shall (“Section 280G”a) in connection with the consummation of the Contemplated Transactions no later than ten (the “Potential Parachute Payments”), 10) Business Days prior to the ClosingClosing Date, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments solicit from each person who is a “disqualified individual” (within the meaning of Section 280G(c) of the Code) who would otherwise be entitled to receive any payment or benefits that would constitute a “parachute payment” (within the meaning of Section 280G(b)(2)(A) of the Code) a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G Benefits”) so that all remaining payments and/or benefits, if any, shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G and who has Potential Parachute Payments of the Code) and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distributionClosing Date, as applicablewith respect to each individual who agrees to the waivers described in clause (a), submit to a vote in accordance with Section 280G(b)(5)(B)(i) of the Code and the regulations promulgated thereunder (along with adequate disclosure satisfying the requirements of Section 280G(b)(5)(B)(ii) of the Code and the regulations promulgated thereunder) the right of any such “disqualified individual” to receive the Waived 280G Benefits (the “280G Vote”). The Acquired Companies shall provide drafts of such waivers and approval materials, and any related calculations, to the Purchaser for Buyer’s (or Buyer’s designee’s) its reasonable review and commentapproval (which approval will not be unreasonably withheld, conditioned or delayed) no later than five (5) Business Days prior to soliciting such waivers and soliciting such approval. If any of the Waived 280G Benefits fail to be approved as contemplated above, such Waived 280G Benefits shall consider in good faith for incorporation all of Buyer’s (not be made or Buyer’s designee’s) comments theretoprovided. Prior to the Closing, the Company Acquired Companies shall deliver to Buyer the Purchaser evidence reasonably satisfactory acceptable to Buyer the Purchaser that stockholder approval of the Potential Parachute Payments a 280G Vote was obtained solicited in conformance accordance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach foregoing provisions of this Section 8.16 7.9 and that either (i) the requisite number of votes of the Acquired Companies’ equityholders was obtained with respect to the extent that the Waived 280G Vote does not meet the requirements of Benefits in accordance with Section 280G(b)(5)(B280G(b)(5)(B)(i) of the Code and the Treasury Regulations regulations promulgated thereunder due to Buyer’s breach of (the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute PaymentsApproval”) or (ii) the 280G Approval was not obtained, such Potential Parachute Payments and, as a consequence, the Waived 280G Benefits shall not be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsor provided.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of applicable, the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”)Company will, prior to the ClosingClosing Date, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts use Commercially Reasonable Efforts to (a) obtain a waiver of the right to receive Potential payments (a “Parachute Payments Payment Waiver”) that could constitute “parachute payments” under Section 280G of the Code and the regulations promulgated thereunder (“Section 280G”) from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and G, (b) solicit stockholder deliver each such Parachute Payment Waiver to Purchaser before the Closing Date, and (c) conduct a shareholder approval process in accordance with the requirements of some portion Section 280G(b)(5)(A)(iii) and Section 280G(b)(5)(B) of the Potential Parachute Payments Code and the regulations promulgated pursuant thereto (the “280G Shareholder Approval”) such that, if stockholder approval is obtained, there will that the payments to any such disqualified individuals in whole or in part as a result of the transactions contemplated by this Agreement based on arrangements in place at Closing shall not be no characterized as “excess parachute payments” under Section 280G. Notwithstanding the foregoing, in no event shall the Company be required to make any payments or provide anything of value to any disqualified individual in an effort to seek such waivers. The Company shall provide copies of the calculations, waivers waivers, disclosure statement and all materials to be distributed to shareholders in connection with seeking the 280G Vote not later than Shareholder Approval to Purchaser at least five (5) Business Days prior to the execution or distributionand/or distribution of such materials, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and commentcomment by Purchaser, and the Company shall consider all comments in good faith for incorporation and incorporate all of Buyer’s (or Buyer’s designee’s) such comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with into the applicable requirements of Section 280G, or that such stockholder approval was not obtained, waivers and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 materials to the extent that reasonable. Whenever any event occurs which should be set forth in an amendment or supplement to the 280G Vote does not meet disclosure provided to the requirements Shareholders of the Company as contemplated by Section 280G(b)(5)(B) of the Code and the Treasury Regulations regulations promulgated thereunder due pursuant thereto so that such disclosure would not include any misstatement of a material fact or omit to Buyer’s breach state any material fact necessary to make the statements therein not misleading, the Sellers will promptly inform Purchaser of such occurrence and will promptly (and in all events prior to Closing and consistent with the intent of the immediately preceding sentence. Notwithstanding first sentence of this Section 6.08) prepare and provide to the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, Company’s shareholders such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsamendment or supplement.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior Prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using will use commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments request from each person Person who is a “disqualified individual” within the meaning of Section 280G of the Code (collectively, the “Waivers”) and who has Potential Parachute Payments a right to any payments or benefits as a result of or in connection with the transactions contemplated herein that would be deemed to constitute “parachute payments” within the meaning of Section 280G of the Code, a waiver of such Person’s rights to some or all of such payments or benefits applicable to such Person so that all remaining payments or benefits applicable to such Person will not be deemed to be parachute payments (collectively, the “Waived Payments”), and (b) following the execution of any Waivers described in clause (a), solicit stockholder the approval of some portion the equity holders of AHS HoldCo, Inc. in a manner that complies with Section 280G(b)(5)(B) of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of Code (the calculations, waivers and all materials to be distributed in connection with the “280G Vote not later than Shareholder Vote”). At least five (5) Business Days prior to requesting the execution or distributionWaivers, as applicablethe Company shall provide drafts of all waivers, of such materialsconsents, disclosures, and calculations prepared in connection with the actions described in this Section 6.07 to Buyer and its counsel for Buyer’s (or Buyer’s designee’s) its review and comment, comment and shall consider such comments in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments theretofaith. Prior to the Closing, the Company shall deliver to Buyer and its counsel evidence reasonably satisfactory to Buyer that stockholder approval of an effective 280G Shareholder Vote was solicited and that either (a) the Potential Parachute Payments requisite shareholder vote was obtained or (b) the requisite shareholder vote was not obtained and no Waived Payments shall be made. Notwithstanding anything to the contrary in conformance with this Section 6.07 or otherwise contained herein, to the applicable requirements of Section 280Gextent Buyer has provided materially inaccurate information, or that such stockholder approval was not obtainedBuyer’s omission of material information has resulted in materially inaccurate information, and as a consequence the Potential Parachute Payments shall not with respect to any payments made or to be made or retained. benefits granted or to be granted pursuant to any employment agreement or other agreement, arrangement or contract entered into or negotiated by Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to or its Affiliates, this Section 8.16, by responding 6.07 will not be deemed to reasonable requests have been breached by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s any such breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, was caused by such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsmaterially inaccurate or omitted information.

Section 280G Approval. To Prior to the extent that Closing Date, the Company shall use reasonable best efforts to obtain valid waivers (collectively, the “Parachute Payment Waivers”) from each holder of Units who is a “disqualified individual” (within the meaning of Section 280G of the Code) and who is entitled to any payments and/or benefits that, separately or benefits in the aggregate, would constitute “parachute payments,” as such term is defined in within the meaning of Section 280G 280G(b)(2) of the Code and the Treasury Regulations promulgated thereunder (“Waived 280G Benefits”), and shall submit to its shareholders for approval to the extent and in a manner intended to be consistent with Section 280G(b)(5)(B) of the Code all or a portion of such payments and/or benefits. The form of the disqualified individuals waivers shall be subject to reasonable review and approval (which will not be unreasonably delayed, conditioned or withheld) by Parent. Not less than three (3) days prior to distribution of any materials to shareholders or “disqualified individuals” (within the meaning of Code Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior to the ClosingPayment Waivers and vote described in this Section 7.16, the Company shall conduct provide Parent for its reasonable review and approval (which will not be unreasonably delayed, conditioned or withheld) a vote in accordance with the requirements copy of all such materials and a copy of its Code Section 280G with respect to calculations. Any of the Potential Parachute Payments (the “Waived 280G Vote”), including using commercially reasonable efforts Benefits which fail to (a) obtain a waiver be approved by the shareholders of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will Company as contemplated above shall not be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution made or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments theretoprovided. Prior to the ClosingClosing Date, the Company shall deliver to Buyer the Parent evidence reasonably satisfactory to Buyer that stockholder approval a vote of the Potential Parachute Payments Company’s shareholders was solicited in accordance with the foregoing provisions of this Section 7.16 and that either (a) the requisite number of shareholder votes was obtained in conformance with respect to the applicable requirements of Section Waived 280G, G Benefits (the “280G Approval”) or (b) that such stockholder approval the 280G Approval was not obtained, and and, as a consequence consequence, the Potential Parachute Payments Waived 280G Benefits have not been and shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsprovided.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior Prior to the ClosingClosing Date, the Seller shall cause the Company to, and the Company shall conduct a vote in accordance with and shall cause the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”)Subsidiaries to, including using commercially reasonable efforts to (a) obtain a written waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” (within the meaning of Section 280G and who has Potential Parachute Payments and (b280G(c) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will Code) of his or her right to any and all payments or other benefits that could be no deemed “parachute payments. The Company shall provide copies ” under Section 280G(b) of the calculations, waivers Code (determined without regard to Sections 280G(b)(4) and all materials to be distributed in connection with the 280G Vote not later than five (5280G(b)(5) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with Code) if such payments are not approved by the applicable requirements of Section 280G, or entity’s stockholders in a manner that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet satisfies the requirements of Section 280G(b)(5)(B) and any regulations thereunder. After obtaining such written waivers and prior to the Closing Date, the Seller shall cause the Company to, and the Company shall and shall cause the Subsidiaries to, solicit stockholder approval of any and all such payments or benefits in a manner that satisfies the requirements for the exemption under Section 280G(b)(5)(A)(ii) of the Code and any regulations issued thereunder, including the Treasury Regulations promulgated thereunder due provision of adequate disclosure to Buyer’s breach all applicable stockholders of the immediately preceding sentence. Notwithstanding the foregoingall material facts concerning all payments that, in the event the Company is unable absence of such stockholder approval, could be classified as “parachute payments” to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of under Section 280G of the Code. The Seller shall cause the Company to, and who has Potential Parachute Paymentsthe Company shall and shall cause the Subsidiaries to, provide such Potential Parachute Payments adequate disclosure to the applicable stockholders in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and any regulations issued thereunder. The form of waiver, solicitation of approval, and disclosure materials shall be made reasonably satisfactory to the Buyer, which shall be afforded a reasonable opportunity to review such disqualified individual in accordance with documents before the terms of the Contract related to such Potential Parachute Paymentswaivers and approval are sought.

Section 280G Approval. To As soon as reasonably practicable following the extent that any payments or benefits would constitute “parachute payments,” as such term is defined date of this Agreement, but in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not event later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the ClosingClosing Date, the Company shall deliver use its commercially reasonable efforts to Buyer evidence reasonably satisfactory (i) obtain waivers from each Person who has a right to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and any payments and/or benefits as a consequence the Potential Parachute Payments shall not be made result of or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to transactions contemplated by this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will Agreement that would be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a constitute “disqualified individualparachute payments” within the meaning of Section 280G of the Code and who has Potential Parachute Paymentsas 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), and (ii) following the execution of the waivers described in clause (i), solicit the approval of the stockholders of the Company to the extent and in the manner required under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits. Prior to soliciting such waivers and approvals, the Company shall provide drafts of such waivers and such stockholder approval materials to the Parent for the Parent’s review and approval, which such approval shall not be unreasonably withheld, conditioned or delayed. To the extent any of the Waived 280G Benefits were not approved by the equity holders of the Company as contemplated above, such Potential Parachute Payments Waived 280G Benefits shall not be made or provided. Prior to such disqualified individual the Closing Date, the Company shall deliver to the Parent evidence that a vote of the stockholders of the Company was solicited in accordance with the terms foregoing provisions of this Section 5.08 and that either (A) the Contract related requisite number of votes were obtained with respect to such Potential Parachute Paymentsthe Waived 280G Benefits (the “280G Approval”), or (B) that the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made or provided.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder The Company shall, no later than three (“Section 280G”3) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), Business Days prior to the ClosingClosing Date, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using i) use commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments secure from each person who is a “disqualified individual” (within the meaning of Section 280G and of the Code) of the Company or any of its Subsidiaries or parent companies who has Potential Parachute Payments and a right to any payments and/or benefits or potential right to any payments and/or benefits under any Company Plan or otherwise that are “contingent” (b) solicit stockholder approval within the meaning of some portion Section 280G of the Potential Parachute Payments such that, if stockholder approval is obtained, there will Code) on the transactions contemplated by this Agreement and that would be no deemed to constitute “parachute payments. The Company shall provide copies ” (within the meaning of Section 280G of the calculationsCode) a waiver, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior subject to the execution or distribution, as applicableapproval described in clause (ii), of such materials, for BuyerPerson’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation rights to all of Buyer’s such parachute payments (or Buyer’s designee’sthe “Waived 280G Benefits”) comments thereto. Prior to and (ii) solicit a vote from the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval stockholders of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280GCompany, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that and in the 280G Vote does not meet the requirements of manner required under Section 280G(b)(5)(B) of the Code and the Treasury Regulations regulations promulgated thereunder due thereunder, of any Waived 280G Benefits. As soon as practicable prior to Buyer’s breach distribution of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable any materials to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a stockholders or “disqualified individualindividuals” (within the meaning of Section 280G of the Code) in connection with the waiver and who has Potential Parachute Paymentsvote described in this Section 6.3, the Company shall provide Merger Sub for its review and comment a copy of all such Potential Parachute Payments materials and a copy of its Section 280G of the Code calculations and shall accept all of Merger Sub’s reasonable comments to such documents. Any of the Waived 280G Benefits which fail to be approved by the stockholders of the Company as contemplated above shall not be made or provided. Prior to such disqualified individual the Closing Date, the Company shall deliver to Merger Sub evidence that a vote of the Company’s stockholders was solicited in accordance with the terms foregoing provisions of this Section 6.3 and that either (i) the Contract related requisite number of stockholder votes was obtained with respect to such Potential Parachute Paymentsthe Waived 280G Benefits (the “280G Approval”), or (ii) that the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits have not been and shall not be made or provided.

Section 280G Approval. To If any Transaction could, in Seller’s reasonable good faith judgment, reasonably be expected to constitute a “change in ownership or control” (within the extent that meaning of Treas. Reg. Section 1.280G-1, Q/A-2(b)) of the Company and any “disqualified individual” (within the meaning of Section 280G(c) of the Code) with respect to the Company has the right to receive or retain any payments or benefits would that could constitute “parachute payments” (within the meaning of Section 280G(b)(2)(A) of the Code), then the Company shall (a) solicit and use commercially reasonable efforts to obtain from each such individual a waiver of such individual’s rights to receive or retain some or all of such payments and benefits (the “Waived Payments”) so that any remaining payments and benefits will not be “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval with respect to each individual who agrees to such waiver, submit to a vote of some portion holders of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies equity interests of the calculationsCompany entitled to vote on such matters, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of manner required under Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B280G(b)(5) of the Code and the Treasury Regulations promulgated thereunder due regulations thereunder, the right of any such individual to Buyer’s breach receive or retain the Waived Payments. No later than three (3) calendar days prior to soliciting such waivers and approval, Seller shall provide drafts of such waivers and disclosure and approval materials to Purchaser and its counsel for its review and comment, which comments will be considered in good faith by Seller. To the extent applicable, prior to the Principal Closing Date, Seller shall deliver to Purchaser evidence that a vote of holders of the immediately preceding sentence. Notwithstanding the foregoing, in the event equity interests of the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual was solicited in accordance with the terms provisions of Section 280G(b)(5) of the Contract related Code and the regulations thereunder and that either (i) the requisite number of votes of holders of the equity interests of the Company was obtained with respect to the Waived Payments or (ii) such Potential Parachute Paymentsrequisite number of votes was not obtained and, as a result, no Waived Payments will be retained, made, or provided.

Section 280G Approval. To the extent that any payments or benefits would could constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions Merger contemplated herein (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable best efforts to (ai) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (bii) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute paymentsPayments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, for BuyerFathom’s (or BuyerFathom’s designee’s) review and comment, and shall consider in good faith for incorporation all of BuyerFathom’s (or BuyerFathom’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer Fathom evidence reasonably satisfactory to Buyer Fathom that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsprovided.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior Prior to the ClosingEffective Time, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using will use its commercially reasonable efforts to (a) obtain waivers (the “Waivers of Parachute Payments”) from each Person who has a waiver of the right to receive Potential Parachute Payments from each person who is any payments and/or benefits as a result of or in connection with the transactions contemplated by this Agreement that would be deemed to constitute “disqualified individualparachute payments” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments Code and as to which such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies Person waives his or her rights to some or all of such payments and/or benefits (the calculations, waivers and all materials to be distributed in connection with the “Waived 280G Vote not later than five (5Benefits”) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such Person so that no remaining payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior and/or benefits applicable to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, such Person will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individualparachute payments” (within the meaning of Section 280G of the Code), and who has Potential Parachute Payments, such Potential (b) no sooner than the day after the day all the Waivers of Parachute Payments shall with respect to which the approval of payments and/or benefits by the Stockholders is to be made solicited become effective, solicit the approval of the Stockholders to the extent and in the manner required under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits. Prior to soliciting such disqualified individual waivers and approvals, the Company will provide the final drafts of such waivers and such stockholder approval materials to Parent for Parent’s review and comment, and the Company will consider reasonable comments of Parent thereon and consult with the Parent with respect thereto, in each case in good faith, including timely providing any material supporting information, calculations and documents. Prior to the Closing Date, the Company will deliver to Parent evidence that a vote of the Stockholders was solicited in accordance with the terms foregoing provisions of this Section 5.09. For the Contract related avoidance of doubt, the Company will not be required to such Potential conduct a stockholder vote pursuant to this Section 5.09 unless it is able to obtain Waivers of Parachute Payments.

Section 280G Approval. To the extent that any “disqualified individual” (within the meaning of Section 280G(c) of the Code and the regulations thereunder) has the right to receive any payments or benefits would that could be deemed to constitute “parachute payments,” as (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder), then, the Company will: (a) no later than five (5) business days prior to the Closing Date, obtain from each such term is defined in “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 “excess parachute payments” (within the meaning of Section 280G of the Code and the Treasury Regulations promulgated thereunder regulations thereunder); and (“Section 280G”b) in connection with the consummation of the Contemplated Transactions no later than two (the “Potential Parachute Payments”), 2) business days prior to the ClosingClosing Date, with respect to each individual who agrees to the waiver described in clause (a), submit to a vote of holders of the equity interests of the Company entitled to vote on such matters, in the manner required under Section 280G(b)(5) of the Code and the regulations promulgated thereunder, along with adequate disclosure intended to satisfy such requirements (including Q&A 7 of Section 1.280G-1 of such regulations), the right of any such “disqualified individual” to receive the Waived 280G Benefits. Prior to, and in no event later than two (2) business days prior to soliciting such waivers and approval, the Company shall conduct a vote in accordance with the requirements provide drafts of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all approval materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, Parent for Buyer’s (or Buyer’s designee’s) its review and comment, and the Company shall consider in good faith for incorporation all any changes to such documentation reasonably requested by Parent. No later than two (2) business days prior to soliciting the waivers, the Company shall provide Parent with the calculations and related documentation used by the Company to determine whether and to what extent the vote described in this Section 6.14 is necessary in order to avoid the imposition of Buyer’s (or Buyer’s designee’s) comments theretoTaxes under Section 4999 of the Code. Prior to the ClosingClosing Date, the Company shall deliver to Buyer Parent evidence reasonably satisfactory to Buyer that stockholder approval a vote of the Potential Parachute Payments was obtained in conformance with the applicable requirements stockholders of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual was solicited in accordance with the terms foregoing and whether the requisite number of votes of the Contract related equityholders of the Company was obtained with respect to such Potential Parachute Paymentsthe Waived 280G Benefits or that the vote did not pass and the Waived 280G Benefits will not be paid or retained.

Section 280G Approval. To the extent that any payments or benefits would could constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions Acquisition contemplated herein (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable best efforts to (ai) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (bii) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute paymentsPayments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, for BuyerPurchaser’s (or BuyerPurchaser’s designee’s) review and comment, and shall consider in good faith for incorporation all of BuyerPurchaser’s (or BuyerPurchaser’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer Purchaser evidence reasonably satisfactory to Buyer Purchaser that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Paymentsprovided.

Section 280G Approval. To If required to avoid the extent that any payments imposition of excise Taxes under Section 4999 of the Code or benefits would constitute “parachute payments,” as such term is defined in the loss of deduction under Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) with respect to any payment or benefit in connection with the consummation of transactions contemplated by this Agreement, the Contemplated Transactions Company will (the “Potential Parachute Payments”), a) no later than four (4) Business Days prior to the ClosingClosing Date, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments solicit from each person who is a “disqualified individual” (as defined in Section 280G(c) of the Code) who has received or may reasonably be expected to receive any payment or benefits that would constitute a “parachute payment” (within the meaning of Section 280G(b)(2)(A) of the Code) a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G Benefits” and, each such waiver, a “280G Waiver”) so that all remaining payments and/or benefits, if any, shall not be “excess parachute payments” (within the meaning of Section 280G and who has Potential Parachute Payments of the Code) and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five two (52) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior Closing Date submit to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval a vote of the Potential Parachute Payments was obtained Members and/or such other Persons entitled to vote (in conformance with the a manner which satisfies all applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver rights of the right to receive Potential Parachute Payments from any person who is a such “disqualified individual” within to receive the meaning of Section Waived 280G Benefits. No later than three (3) Business Days prior to soliciting 280G Waivers from the “disqualified individuals,” the Company shall provide drafts of such waivers and who has Potential Parachute Paymentsdisclosure materials to Parent for its review and approval. If any of the Waived 280G Benefits fail to be approved by the Members and/or such other Persons entitled to vote contemplated above, such Potential Parachute Payments Waived 280G Benefits shall not be made or provided. Prior to the Effective Time, the Company shall deliver to Parent evidence reasonably satisfactory to Parent that a vote of the Members and/or such disqualified individual other Persons entitled to vote was solicited in accordance with the terms foregoing provisions of this Section 5.16 and that either (i) the requisite number of votes of the Contract related Members and/or such other Persons entitled to such Potential Parachute Paymentsvote was obtained with respect to any Waived 280G Benefits (the “280G Approval”) or (ii) the 280G Approval was not obtained, and, as a consequence, any Waived 280G Benefits shall not be made or provided.

Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder Blocker Seller shall cause Blocker to (“Section 280G”a) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), no later than five Business Days prior to the ClosingClosing Date, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using use commercially reasonable efforts to obtain from each "disqualified individual" (awithin the meaning of Section 280G(c) obtain of the Code), with respect to Blocker that is eligible to receive any payment or benefits that would constitute a "parachute payment" (within the meaning of Section 280G(b)(2)(A) of the Code), a waiver of the right to receive Potential Parachute Payments from each person who is a “such disqualified individual” 's rights to some or all of such payments or benefits, including any arrangements entered into by Buyer or its Affiliates with any such "disqualified individual" the details of which are made available to Blocker Seller at least ten Business Days prior to the Closing Date (the "Waived 280G Benefits"), to the extent necessary, so that all shall not be deemed to be "excess parachute payments" (within the meaning of Section 280G and who has Potential Parachute Payments of the Code) and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) two Business Days prior to the execution or distributionClosing Date, as applicablewith respect to each individual who agrees to the waiver described in clause (a), submit to a stockholder vote, in a manner intended to satisfy the requirements of Section 280G(b)(5) of the Code and any regulations promulgated thereunder, the right of any such "disqualified individual" to receive the Waived 280G Benefits. Blocker Seller shall cause Blocker to provide drafts of such materials, waivers and approval materials to Buyer for Buyer’s (or Buyer’s designee’s) its reasonable review and comment, comment no later than two Business Days prior to soliciting such waivers and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments theretosoliciting such approval. Prior to the Closing, the Company if any waiver described in clause (a) above is actually obtained, Blocker Seller shall deliver to Buyer evidence reasonably satisfactory acceptable to Buyer that stockholder approval a vote of the Potential Parachute Payments applicable stockholders was solicited and that either (i) the requisite number of votes of the applicable stockholders was obtained in conformance with respect to the applicable requirements of Section Waived 280G, G Benefits (the "280G Approval") or that such stockholder approval (ii) the 280G Approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Company is unable to obtain a waiver of the right to receive Potential Parachute Payments from any person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments, such Potential Parachute Payments shall be made to such disqualified individual in accordance with the terms of the Contract related to such Potential Parachute Payments.