Common use of Section 280G Approval Clause in Contracts

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 that could be deemed to constitute “parachute payments” (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, request that each such “disqualified individual” agree to 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 regulations thereunder); and (b) no later than two (2) Business Days prior to the Closing Date, with respect to each individual who agrees to the waiver described in clause (a), submit to a vote of the holder 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 provide drafts of such waivers and approval materials to Buyer for its review and comment and shall give due consideration to any changes thereto that are reasonably requested in good faith by Buyer. No later than two (2) Business Days prior to soliciting the waivers, the Company shall provide Buyer with the calculations and related documentation used by the Company to determine whether and to what extent the vote described in this Section 6.7 is necessary in order to avoid the imposition of Taxes under Section 4999 of the Code. Prior to the Closing Date, the Company shall deliver to Buyer evidence that a vote of the stockholders of the Company was solicited in accordance with the foregoing and whether the requisite number of votes of the stockholders of the Company was obtained with respect to the Waived 280G Benefits or whether the vote did not pass and the Waived 280G Benefits will not be paid or retained.

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 that could be deemed to constitute “parachute payments” (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder), thenapplicable, the Company will: shall use its reasonable best efforts to (ai) no later than five (5) Business Days prior to the Closing DateClosing, request that solicit waivers from each such “disqualified individual” agree Person who has a right to 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 as a result of or in connection with the transactions contemplated herein that would be deemed to be constitute “excess parachute payments” (within the meaning of Section 280G of the Code and (“Section 280G”)) (the regulations thereunder“Waived 280G Benefits”); , and (bii) no later than two three (23) Business Days prior to the Closing Date, with respect to each individual who agrees to the waiver described in clause (a), submit to a vote of the holder 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 BenefitsBenefits to the stockholders of the Company for approval, in a manner complying with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code. Prior to, and in no event later than two (2) Business Days prior to soliciting such waivers and approval, the Company shall provide drafts of such waivers and approval materials to Buyer Parent for its reasonable review and comment and shall give due consideration to any changes thereto that are reasonably requested in good faith by Buyer. No approval (which approval will not be unreasonably withheld, conditioned or delayed) no later than two (2) Business Days prior to soliciting the waivers, the Company shall provide Buyer with the calculations such waivers and related documentation used by the Company to determine whether and to what extent the vote described in this Section 6.7 is necessary in order to avoid the imposition of Taxes under Section 4999 of the Codesoliciting such approval. Prior to the Closing DateEffective Time, the Company shall deliver to Buyer Parent evidence reasonably acceptable to Parent that a vote of the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 6.7 and whether that either (i) the requisite number of votes of the stockholders of the Company was obtained with respect to the Waived 280G Benefits (the “280G Approval”) or whether (ii) the vote did 280G Approval was not pass and obtained, and, as a consequence, the Waived 280G Benefits will shall not be paid made or retainedprovided.

Section 280G Approval. To the extent that the Company determines that any Person who is a “disqualified individual” (within the meaning of Section 280G(c) 280G of the Code and the regulations thereunderCode, hereinafter “Section 280G”)) has the would have a right to receive any payments and/or benefits as a result of or benefits in connection with the transactions contemplated herein that could would be deemed to constitute “parachute payments” (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder280G), then, as soon as reasonably practicable following the Company will: (a) date of this Agreement, but in no event later than five (5) Business Days prior to the Closing Date, request that the Company shall (i) solicit waivers from each such “disqualified individual” Person as to which such Person shall agree to a waiver of such disqualified individual’s waive his or her rights to some or all of such payments or and/or benefits (the “Waived 280G Benefits”) applicable to such Person so that any 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 G), and (ii) solicit the approval of the Code and the regulations thereunder); and (b) no later than two (2) Business Days prior to the Closing Date, with respect to each individual who agrees to the waiver described in clause (a), submit to a vote of the holder of the equity interests stockholders of the Company entitled to vote on such matters, the extent and in the manner required under Section 280G(b)(5Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) 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 approvalapprovals, the Company shall provide drafts of such waivers waiver and such stockholder approval materials to Buyer Parent for its review and comment and shall give due consideration to Parent’s review. To the extent any changes thereto that of the Waived 280G Benefits are reasonably requested in good faith by Buyer. No later than two (2) Business Days prior to soliciting the waivers, the Company shall provide Buyer with the calculations and related documentation used not so approved by the Company to determine whether and to what extent the vote described in this Section 6.7 is necessary in order to avoid the imposition of Taxes under Section 4999 of the Codestockholders as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing Date, the Company shall deliver to Buyer Parent evidence that a vote of the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 6.13 and whether that either (A) the requisite number of stockholder votes of the stockholders of the Company was were obtained with respect to the Waived 280G Benefits (the “280G Approval”), or whether (B) that the vote did 280G Approval was not pass and obtained, and, as a consequence, the Waived 280G Benefits will shall not be paid made or retainedprovided.

Section 280G Approval. To the extent that any “disqualified individual” (within necessary to avoid the meaning application of Section 280G(c) 280G of the Code and the applicable final Treasury regulations and rulings thereunder) has , as soon as reasonably practicable following the right to receive any payments or benefits that could be deemed to constitute “parachute payments” (within the meaning date of Section 280G(b)(2)(A) of the Code and the regulations thereunder)this Agreement, then, the Company will: (a) but in no event later than five three (53) Business Days prior to the Closing Date, request the Company shall (i) obtain waivers from each Person who has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated by this Agreement that each would reasonably be expected to constitute “parachute payments” within the meaning of Section 280G of the Code and as to which such “disqualified individual” agree to a waiver of such disqualified individual’s Person waives his or her rights to some or all of such payments or and/or benefits (the “Waived 280G Benefits”) applicable to such Person so that any 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 the regulations thereunderCode); , and (bii) no later than two (2) Business Days prior to following the Closing Date, with respect to each individual who agrees to execution of the waiver waivers described in clause (ai), submit solicit the approval of the stockholders of the Company to the extent required under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits pursuant to a vote intended to meet the requirements of the holder of the equity interests of the Company entitled to vote on such matters, in the manner required under Section 280G(b)(5280G(b)(5)(B) of the Code and the regulations promulgated thereunder, along with adequate disclosure intended and that shall be in a form reasonably satisfactory to satisfy such requirements (including Q&A 7 Parent and Merger Sub. To the extent any 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, Benefits were not approved by the equity holders of the Company as contemplated above, such Waived 280G Benefits shall provide drafts of such waivers and approval materials to Buyer for its review and comment and shall give due consideration to any changes thereto that are reasonably requested in good faith by Buyer. No later than two (2) Business Days prior to soliciting the waivers, the Company shall provide Buyer with the calculations and related documentation used by the Company to determine whether and to what extent the vote described in this Section 6.7 is necessary in order to avoid the imposition of Taxes under Section 4999 of the Codenot be made or provided. Prior to the Closing Date, the Company shall deliver to Buyer Parent evidence that a vote of the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 5.08 and whether that either (A) the requisite number of votes of the stockholders of the Company was were obtained with respect to the Waived 280G Benefits (the “280G Approval”), or whether (B) that the vote did 280G Approval was not pass and obtained, and, as a consequence, the Waived 280G Benefits will shall not be paid made or retainedprovided.

Section 280G Approval. To The Corporation or its applicable Subsidiaries shall, as soon as practicable following the extent that any “disqualified individual” (within the meaning date of Section 280G(c) of the Code this Agreement and the regulations thereunder) has the right to receive any payments or benefits that could be deemed to constitute “parachute payments” (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder), then, the Company will: (a) in no event later than five (5) Business Days prior to the Closing Date, request that (i) use commercially best efforts to secure from each such “disqualified individual” agree individual (within the meaning of Section 280G of the Code) a waiver, subject to a waiver the approval described in clause (ii), of such disqualified individualPerson’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 Code) that are equal to or in excess of three times such Person’s “base amount” (within the regulations thereunder); meaning of Section 280G of the Code) less one dollar (the “Waived 280G Benefits”) and (bii) no later than two (2) Business Days prior solicit the approval of the stockholders of the Corporation or its Subsidiaries, as applicable, to the Closing Date, with respect to each individual who agrees to the waiver described in clause (a), submit to a vote of the holder of the equity interests of the Company entitled to vote on such matters, extent and in the manner required under Section 280G(b)(5280G(b)(5)(B) 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 No later than two three (23) Business Days prior to soliciting such waivers and approval, the Company shall provide drafts of such waivers and approval materials to Buyer for its review and comment and shall give due consideration to any changes thereto that are reasonably requested in good faith by Buyer. No later than two (2) Business Days prior to soliciting the waivers, the Company shall provide Buyer with the calculations and related documentation used by the Company to determine whether and to what extent the vote described in this Section 6.7 is necessary in order to avoid the imposition of Taxes under Section 4999 of the Code. Prior to the Closing Date, the Company Corporation shall deliver to Buyer evidence the Parent (and the Parent’s legal counsel) a written certification that a vote of the stockholders of the Company was solicited in accordance with the foregoing and whether either (A) the requisite number of votes of the stockholders of the Company vote was obtained with respect to the Waived 280G Benefits (the “280G Approval”) or whether (B) the vote did 280G Approval was not pass and obtained and, as a consequence, the Waived 280G Benefits will have not been and shall not be made or provided, and any previously paid or retainedprovided Waived 280G Benefits shall be returned or recovered. The Corporation shall provide the Parent with drafts of any material relating to such vote (including any waivers, consents or disclosure statements) (which shall be subject to the Parent’s reasonable review and comment for five (5) Business Days prior to the distribution of such materials) along with its analysis under Section 280G of the Code. Nothing in this Section 7.10 shall be construed as requiring any specific outcome to the vote described herein. The Corporation and Parent shall cooperate in good faith with respect to calculating the value of any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and any disqualified individual, on the other hand (“Parent 57 Arrangements”); provided, however, that if such Parent Arrangements are not provided or are provided to the Corporation fewer than ten (10) Business Days prior to the Closing Date, compliance with the remainder of this Section 7.10 shall be determined as if such Parent Arrangements had not been entered into. In no event shall the Partnership be deemed to be in breach of this Section 7.10 or any other provision in this Agreement if any disqualified individual refuses to execute a 280G waiver, the 280G Approval is not available or the 280G Approval is not obtained.