Common use of Section 280G Matters Clause in Contracts

Section 280G Matters. (a) The Company will obtain and deliver to Parent, prior to the initiation of the procedure described in Section 4.10(b) an excess parachute payment waiver, in a form reasonably acceptable to Parent, from each person who the Company reasonably believes is, with respect to the Company, a “disqualified individual” (within the meaning of Section 280G of the Code) with respect to the Merger and the transactions contemplated thereby and who would otherwise receive or have the right or entitlement to receive a “parachute payment” (as defined in Section 280G(b)(2) of the Code) under Section 280G of the Code as a result of the Merger. By the execution of such waiver agreement, the person executing the waiver will agree to waive all of his or her right and entitlement to receive (or if already paid, his or her right and entitlement to keep) any portion of such “parachute payments” which would cause the person executing the waiver to receive an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), unless the Company’s stockholders approve such waived payments in accordance with Section 280G(b)(5)(A)(ii) of the Code. (b) The Company will submit the payments which are waived pursuant to the waiver agreements described in Section 4.10(a) to its stockholders and the holders of the voting power of any entity stockholder for their approval in accordance with all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations.

Section 280G Matters. (a) The Company Target will obtain and deliver to ParentAcquiror, prior to the initiation of the procedure described in ☐subsection (ii) of this Section 4.10(b) 6.9(a), an excess parachute payment waiver, in a the form reasonably acceptable to Parentpreviously approved by Acquiror, from each person Person who the Company Target reasonably believes is, with respect to the CompanyTarget or any of its Subsidiaries, a “disqualified individual” (within the meaning of Section 280G of the Code) with respect to the Merger and the transactions contemplated thereby and who would otherwise receive or have the right or entitlement to receive a “parachute payment” (as defined in Section 280G(b)(2) of the Code) from Target or any of its Subsidiaries, or from Acquiror or any trade or business (whether or not incorporated) that is a member of a controlled group or which is under common control with Acquiror within the meaning of Section 414 of the Code, under Section 280G of the Code as a result of the MergerClosing or the consummation of the Merger or the Spin-Off Transaction (including in connection with certain changes in any such Person’s employment circumstances following the consummation of the Merger or the Spin-Off Transaction). By the execution of such waiver agreement, the person Person executing the waiver will agree to waive all of his or her right and entitlement to receive (or if already paid, his or her right and entitlement to keep) any portion of such “parachute payments” which would cause the person Person executing the waiver to receive an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), unless the CompanyTarget’s stockholders approve such waived payments in accordance with Section 280G(b)(5)(A)(ii) of the Code. (b) The Company will submit the payments which are waived pursuant to the waiver agreements described in Section 4.10(a) to its stockholders and the holders of the voting power of any entity stockholder for their approval in accordance with all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations.

Section 280G Matters. (ai) The Company Target will obtain and deliver to ParentAcquiror, prior to the initiation of the procedure described in subsection (ii) of this Section 4.10(b) 6.9(a), an excess parachute payment waiver, in a the form reasonably acceptable to Parentpreviously approved by Acquiror, from each person Person who the Company Target reasonably believes is, with respect to the CompanyTarget or any of its Subsidiaries, a “disqualified individual” (within the meaning of Section 280G of the Code) with respect to the Merger and the transactions contemplated thereby and who would otherwise receive or have the right or entitlement to receive a “parachute payment” (as defined in Section 280G(b)(2) of the Code) from Target or any of its Subsidiaries, or from Acquiror or any trade or business (whether or not incorporated) that is a member of a controlled group or which is under common control with Acquiror within the meaning of Section 414 of the Code, under Section 280G of the Code as a result of the MergerClosing or the consummation of the Merger or the Spin-Off Transaction (including in connection with certain changes in any such Person’s employment circumstances following the consummation of the Merger or the Spin-Off Transaction). By the execution of such waiver agreement, the person Person executing the waiver will agree to waive all of his or her right and entitlement to receive (or if already paid, his or her right and entitlement to keep) any portion of such “parachute payments” which would cause the person Person executing the waiver to receive an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), unless the CompanyTarget’s stockholders approve such waived payments in accordance with Section 280G(b)(5)(A)(ii) of the Code. (bii) The Company Target will submit the payments which are waived pursuant to the waiver agreements described in subsection (i) of this Section 4.10(a6.9(a) to its stockholders and the holders of the voting power of any entity stockholder for their approval in accordance with all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations.

Section 280G Matters. (a) The Company will shall obtain and deliver to Parent, prior to the initiation of the procedure described in Section 4.10(b) an excess parachute payment ‎Section 4.13(b), a waiver, in a substantially the form reasonably acceptable to Parentattached hereto as Exhibit F, from each person Person who the Company reasonably believes is, with respect to the CompanyCompany or any other entity treated as a single employer with the Company under Section 280G of the Code, a “disqualified individual” (within the meaning of Section 280G of the Code) with respect to the Merger and the transactions contemplated thereby Transactions and who would otherwise receive or have the right or entitlement to receive a “parachute payment” (as defined in Section 280G(b)(2) of the Code) from the Company or any of its Subsidiaries, or from Parent or any trade or business (whether or not incorporated) that is a member of a controlled group or which is under common control with Parent within the meaning of Section 414 of the Code, under Section 280G of the Code as a result of the Closing or the consummation of the Merger (including in connection with certain changes in any such Person’s employment circumstances following the consummation of the Merger). By the execution of such waiver agreement, the person Person executing the waiver will shall agree to waive all of his or her right and entitlement to receive (or if already paid, his or her right and entitlement to keep) any portion of such “parachute payments” which would cause the person Person executing the waiver to receive an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), unless the Company’s stockholders approve such waived payments in accordance with Section 280G(b)(5)(A)(ii) of the Code. (b) The Company will shall submit the payments which are waived pursuant to the waiver agreements described in Section 4.10(a‎Section 4.13(a) to its stockholders and the holders of the voting power of any entity stockholder for their approval in accordance with all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations. Such approval shall, in accordance with such provisions, be a separate vote from any vote to approve this Agreement, the Merger or any of the other Transactions.

Section 280G Matters. (a) The Company will take commercially reasonable efforts to obtain and deliver to Parent, prior to at least one Business Day before the initiation of the procedure described in Section 4.10(b) 4.9(b), an excess parachute payment waiver, in a substantially the form reasonably acceptable to Parentof Exhibit H, from each person Person who the Company (after consultation with Parent) reasonably believes is, with respect to the Company, is a “disqualified individual” (within the meaning of Section 280G of the Code) with respect to the Merger and the transactions contemplated thereby and who would otherwise receive or have the right or entitlement to receive a “parachute payment” (as defined in Section 280G(b)(2) of the Code) under Section 280G of the Code as a result of the MergerTransactions (including in connection with certain changes in any such Person’s employment circumstances following the consummation of the Transactions). By the execution of such waiver agreement, the person Person executing the waiver will agree to waive all of his or her right and entitlement to receive (or if already paid, his or her right and entitlement to keep) any portion of such “parachute payments” which would cause the person Person executing the waiver to receive an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), unless the Company’s stockholders approve such waived payments in accordance with Section 280G(b)(5)(A)(ii) of the Code. (b) The Prior to the Effective Time, the Company will submit the payments which are waived pursuant to the waiver agreements described in Section 4.10(a4.9(a) to its stockholders and the holders of the voting power of any entity stockholder for their approval in accordance with all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations. At least three days prior to the Closing, the Company will provide, or cause to be provided, to Parent a draft of all solicitation and related documents (including any calculations of the parachute payments) contemplated in this Section 4.9(b), including any disclosure documents. The Company will incorporate any reasonable comments into such documents that are made timely by Parent. (c) To the extent that any Contract, agreement or plan will be entered into by, or at the direction of, Parent or any of its Affiliates and a disqualified individual at or prior to the Closing (the “Purchaser Arrangements”), Parent shall provide a copy of such Contract, agreement or plan to the Company no later than five days before the Closing and cooperate with the Company in good faith in order to calculate or determine the value (for purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein that may constitute, individually or in the aggregate with other payments or benefits, “parachute payments”; provided that the Company’s failure to include the Purchaser Arrangements in the equityholder voting materials described herein due to Parent’s breach of its obligations set forth herein will not result in a breach of this Section 4.9.

Section 280G Matters. (a) The Company Target will obtain and deliver to ParentAcquiror, prior to the initiation of the procedure described in ☒subsection (ii) of this Section 4.10(b) 6.10(i), an excess parachute payment waiver, in a the form reasonably acceptable to Parentpreviously approved by Acquiror, from each person Person who the Company Target and Acquiror reasonably believes agree is, with respect to the CompanyTarget or any of its Subsidiaries or its ERISA Affiliates, a “disqualified individual” (within the meaning of Section 280G of the Code) with respect to the Merger and the transactions contemplated thereby and who would otherwise receive or have the right or entitlement to receive or retain a “parachute payment” (as defined in Section 280G(b)(2) of the Code) from Target or any of its Subsidiaries or its ERISA Affiliates, or from Acquiror or any trade or business (whether or not incorporated) that is a member of a controlled group or which is under common control with Acquiror within the meaning of Section 414 of the Code, under Section 280G of the Code as a result in connection with the transactions contemplated by this Agreement (including in connection with certain changes in any such Person’s employment circumstances following the consummation of the Merger). By the execution of such waiver agreement, the person Person executing the waiver will agree to waive all of his or her right and entitlement to receive (or if already paid, his or her right and entitlement to keep) any portion of such “parachute payments” which would cause the person Person executing the waiver to receive an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), unless the CompanyTarget’s stockholders approve such waived payments in accordance with Section 280G(b)(5)(A)(ii) of the Code. (b) The Company will submit the payments which are waived pursuant to the waiver agreements described in Section 4.10(a) to its stockholders and the holders of the voting power of any entity stockholder for their approval in accordance with all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations.

Section 280G Matters. (a) The Company Target will obtain and deliver to ParentAcquiror, prior to the initiation of the procedure described in ☒subsection (ii) of this Section 4.10(b) 6.7(i), an excess parachute payment waiver, in a the form reasonably acceptable to Parentpreviously approved by Acquiror, from each person Person who the Company Target and Acquiror reasonably believes agree is, with respect to the CompanyTarget or any of its Subsidiaries or its ERISA Affiliates, a “disqualified individual” (within the meaning of Section 280G of the Code) with respect to the Merger and the transactions contemplated thereby and who would otherwise receive or have the right or entitlement to receive or retain a “parachute payment” (as defined in Section 280G(b)(2) of the Code) from Target or any of its Subsidiaries or its ERISA Affiliates , or from Acquiror or any trade or business (whether or not incorporated) that is a member of a controlled group or which is under common control with Acquiror within the meaning of Section 414 of the Code, under Section 280G of the Code as a result in connection with the transactions contemplated by this Agreement (including in connection with certain changes in any such Person’s employment circumstances following the consummation of the Merger). By the execution of such waiver agreement, the person Person executing the waiver will agree to waive all of his or her right and entitlement to receive (or if already paid, his or her right and entitlement to keep) any portion of such “parachute payments” which would cause the person Person executing the waiver to receive an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), unless the CompanyTarget’s stockholders approve such waived payments in accordance with Section 280G(b)(5)(A)(ii) of the Code. (b) The Company will submit the payments which are waived pursuant to the waiver agreements described in Section 4.10(a) to its stockholders and the holders of the voting power of any entity stockholder for their approval in accordance with all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations.