Common use of Section 280G Approval Clause in Contracts

Section 280G Approval. Promptly following the execution of this Agreement and no later than two (2) Business Days prior to the Closing Date, the Companies shall use commercially reasonable efforts to solicit approval by their members, to the extent required by, and in manner that complies with, Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, of the right of any “disqualified individual” (as defined in Section 280G(c) of the Code) to receive and retain any payments or benefits to be made or deemed made by a Company that would, separately or in the aggregate, in the absence of such approval by stockholders, constitute “parachute payments” pursuant to Section 280G of the Code as a result of the transactions contemplated by this Agreement. Prior to seeking such stockholder approval, such Company shall obtain from each “disqualified individual” (as defined under Section 280G(c) of the Code) with a right to any potential “parachute payment” (as defined under Section 280G(b)(2) of the Code) a waiver of that right (“Waived 280G Benefits”) such that unless such payment to that disqualified individual is approved by stockholders in a manner described in Section 280G(b)(5) of the Code, no such payment will be made. Within a reasonable period of time prior to soliciting such waivers and vote, such Company shall provide a draft of such waivers and such stockholder vote solicitation materials (together with any calculations and supporting documentation) to Buyer for Buyer’s review, and such Company will consider in good faith any reasonable comments made by Buyer. To the extent that any of the Waived 280G Benefits are not approved by the stockholders of the Company as contemplated above, such Waived 280G Benefits shall not be made or provided in any manner.

Section 280G Approval. Promptly following To the execution extent applicable, the Company shall use its reasonable best efforts to (i) no later than five (5) Business Days prior to the Closing, solicit waivers from each Person who has a right to any payments and/or benefits as a result of this Agreement or in connection with the transactions contemplated herein that would be deemed to constitute “excess parachute payments” (within the meaning of Section 280G of the Code (“Section 280G”)) (the “Waived 280G Benefits”), and (ii) no later than three (3) Business Days prior to the Closing submit the Waived 280G Benefits 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 soliciting such waivers and approval, the Company shall provide drafts of such waivers and approval materials to Parent for its reasonable review and approval (which approval will not be unreasonably withheld, conditioned or delayed) no later than two (2) Business Days prior to the Closing Date, the Companies shall use commercially reasonable efforts to solicit approval by their members, to the extent required by, and in manner that complies with, Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, of the right of any “disqualified individual” (as defined in Section 280G(c) of the Code) to receive and retain any payments or benefits to be made or deemed made by a Company that would, separately or in the aggregate, in the absence of such approval by stockholders, constitute “parachute payments” pursuant to Section 280G of the Code as a result of the transactions contemplated by this Agreement. Prior to seeking such stockholder approval, such Company shall obtain from each “disqualified individual” (as defined under Section 280G(c) of the Code) with a right to any potential “parachute payment” (as defined under Section 280G(b)(2) of the Code) a waiver of that right (“Waived 280G Benefits”) such that unless such payment to that disqualified individual is approved by stockholders in a manner described in Section 280G(b)(5) of the Code, no such payment will be made. Within a reasonable period of time prior to soliciting such waivers and votesoliciting such approval. Prior to the Effective Time, such the Company shall provide deliver to Parent evidence reasonably acceptable to Parent that a draft vote of such waivers the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 6.7 and such stockholder vote solicitation materials that either (together i) the requisite number of votes of the stockholders of the Company was obtained with any calculations and supporting documentation) respect to Buyer for Buyer’s review, and such Company will consider in good faith any reasonable comments made by Buyer. To the extent that any of the Waived 280G Benefits are (the “280G Approval”) or (ii) the 280G Approval was not approved by obtained, and, as a consequence, the stockholders of the Company as contemplated above, such Waived 280G Benefits shall not be made or provided in any mannerprovided.

Section 280G Approval. Promptly To the extent that the Company determines that any Person who is a “disqualified individual” (within the meaning of Section 280G of the Code, hereinafter “Section 280G”)) would have a 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” (within the meaning of Section 280G), then, as soon as reasonably practicable following the execution date of this Agreement and Agreement, but in no event later than two five (25) Business Days prior to the Closing Date, the Companies Company shall use commercially reasonable efforts (i) solicit waivers from each such Person as to solicit approval by their members, which such Person shall agree to the extent required by, and in manner that complies with, Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, of the right of any “disqualified individual” (as defined in Section 280G(c) of the Code) waive his or her rights to receive and retain any payments some or benefits to be made or deemed made by a Company that would, separately or in the aggregate, in the absence all of such approval by stockholders, constitute “parachute payments” pursuant to Section 280G of payments and/or benefits (the Code as a result of the transactions contemplated by this Agreement. Prior to seeking such stockholder approval, such Company shall obtain from each “disqualified individual” (as defined under Section 280G(c) of the Code) with a right to any potential “parachute payment” (as defined under Section 280G(b)(2) of the Code) a waiver of that right (“Waived 280G Benefits”) applicable to such Person so that unless all remaining payments and/or benefits applicable to such payment Person shall not be deemed to that disqualified individual is approved by be “excess parachute payments” (within the meaning of Section 280G), and (ii) solicit the approval of the stockholders of the Company to the extent and in a the manner described in Section 280G(b)(5required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code, no such payment will be madeCode of any Waived 280G Benefits. Within a reasonable period of time prior Prior to soliciting such waivers and voteapprovals, such the Company shall provide a draft drafts of such waivers waiver and such stockholder vote solicitation approval materials (together with any calculations and supporting documentation) to Buyer Parent for BuyerParent’s review, and such Company will consider in good faith any reasonable comments made by Buyer. To the extent that any of the Waived 280G Benefits are not so approved by the stockholders of the Company as contemplated above, such Waived 280G Benefits shall not be made or provided provided. Prior to the Closing Date, Company shall deliver to Parent evidence that a vote of the stockholders was solicited in any manneraccordance with the foregoing provisions of this Section 6.13 and that either (A) the requisite number of stockholder votes were obtained with respect to the 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. Promptly following the execution of this Agreement and no later than two (2) Business Days prior Prior to the Closing Date, the Companies Company shall use commercially reasonable efforts (a) secure from each Person who is, with respect to the Company, a “disqualified individual” (within the meaning of Section 280G of the Code) that has 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 the approval by their membersof Stockholders pursuant to the Required Company Stockholder Vote, to the extent required by, and in the manner that complies with, Section required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, of the right of in order to pay any “disqualified individual” (as defined in Section 280G(c) of the Code) to receive and retain any payments or benefits to be made or deemed made by a Company that would, separately or in the aggregate, in the absence of such approval by stockholders, constitute “parachute payments” pursuant to Section 280G of the Code as a result of the transactions contemplated by this Agreement. Prior to seeking such stockholder approval, such Company shall obtain from each “disqualified individual” (as defined under Section 280G(c) of the Code) with a right to any potential “parachute payment” (as defined under Section 280G(b)(2) of the Code) a waiver of that right (“Waived 280G Benefits”) such that unless such payment to that disqualified individual is approved by stockholders in a manner described in Section 280G(b)(5) of the Code, no such payment will be made. Within a reasonable period of time prior to soliciting such waivers and vote, such Company Target shall provide a draft drafts of such waivers and such stockholder vote solicitation materials (approval materials, together with such background materials and calculations used to determine whether any calculations payment and/or benefit constitutes a parachute payment, to the Parent for its review and supporting documentationcomment at least three (3) business days prior to Buyer for Buyer’s reviewobtaining such waivers and soliciting such approval, and such the Company will consider in good faith shall include any reasonable changes or comments made thereto reasonably requested by Buyerthe Parent. To Neither the extent that Company nor any of its Affiliates shall pay any of the Waived 280G Benefits are if such payment is not approved by the stockholders of Company Stockholders pursuant to the Required Company Stockholder Vote as contemplated above, such Waived 280G Benefits shall not be made or provided in any manner.

Section 280G Approval. Promptly As soon as reasonably practicable following the execution of this Agreement and date hereof, but in no event later than two five Business Days prior to the Closing Date, AP Hostess Holdings shall (2a) 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” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder (“Section 280G”)) a waiver of such Person’s rights to any such payments and/or benefits, including any potential 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); and (b) if a waiver of Section 280G is obtained, solicit, and use commercially reasonable efforts to secure, at least three Business Days prior to the Closing Date, the Companies shall use commercially reasonable efforts to solicit approval by their membersof its stockholders, to the extent required by, and in the manner that complies with, Section required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, of the right of in order to pay any “disqualified individual” (as defined in Section 280G(c) of the Code) to receive and retain any payments or benefits to be made or deemed made by a Company that would, separately or in the aggregate, in the absence of such approval by stockholders, constitute “parachute payments” pursuant to Section 280G of the Code as a result of the transactions contemplated by this Agreement. Prior to seeking such stockholder approval, such Company shall obtain from each “disqualified individual” (as defined under Section 280G(c) of the Code) with a right to any potential “parachute payment” (as defined under Section 280G(b)(2) of the Code) a waiver of that right (“Waived 280G Benefits”) such that unless such payment to that disqualified individual is approved by stockholders in a manner described in Section 280G(b)(5) of the Code, no such payment will be made. Within a reasonable period of time prior to soliciting such waivers and vote, such Company AP Hostess Holdings shall provide a draft drafts of such waivers and such stockholder vote solicitation materials (together with any calculations and supporting documentation) approval materials, including disclosure documents, to the Buyer for Buyer’s review, its review and comment at least three Business Days prior to obtaining such Company will consider in good faith any reasonable comments made by Buyerwaivers and soliciting such approval. To the extent that any None of the Waived 280G Benefits shall be made if they are not approved by the stockholders of the Company AP Hostess Holdings as contemplated above. Prior to the Closing Date, such AP Hostess Holdings shall deliver to the Buyer evidence that a vote of its stockholders was solicited in accordance with the provisions of this Section 6.22 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 made or provided in any mannerprovided.