Common use of Solicitation of 280G Approval Clause in Contracts

Solicitation of 280G Approval. (a) Promptly following the execution of this Agreement, but in no event later than five (5) business days after the date Parent has approved such materials pursuant to Section 6.1, the Company shall use its reasonable best efforts to obtain from each Person, if any, who might receive any payments and/or benefits that may be nondeductible under Section 280G of the Code in connection with the consummation of the Merger a duly executed waiver (the “280G Waiver”) of the Potential Parachute Payment (as defined below) and (ii) submit each such Potential Parachute Payment to the Company Stockholders for approval (in a manner satisfactory to Parent) by such number of Company Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, such that all such payments and/or benefits shall not be nondeductible as a result of Section 280G of the Code, and, if applicable, prior to the Effective Time the Company shall deliver to Parent evidence satisfactory to Parent (x) that a Company Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder, and, if applicable, the requisite Company Stockholder approval was obtained with respect to any Potential Parachute Payment that were made subject to the Company Stockholder vote (the “280G Approval”), or (y) that the 280G Approval was not obtained and as a consequence, that such Potential Parachute Payment shall not be made or provided, pursuant to the waivers of those Potential 280G Benefits which were executed by the affected Persons following the execution of this Agreement. For the purposes of this Agreement, “Potential Parachute Payment” shall mean the portion of any Person’s payments and/or benefits in connection with the consummation of the Merger that is in excess of 2.99 times such Person’s “Base Amount” (within the meaning of Section 280G(b)(3) of the Code).

Solicitation of 280G Approval. (a) Promptly following Prior to the execution of this Agreement, but in no event later than five (5) business days after the date Parent has approved such materials pursuant to Section 6.1Closing Date, the Company shall shall: (i) use its reasonable best efforts to obtain from each PersonPerson who is a “disqualified individual” (within the meaning of Section 280G(c) of the Code and the Treasury Regulations thereunder) with respect to the Company, if any, who might receive or retain any payments and/or benefits that may be nondeductible under Section 280G of the Code in connection with the consummation of the Merger Share Purchase (a “Disqualified Individual”) a duly executed waiver of the Potential Parachute Payment (the “280G Waiver”) of the Potential Parachute Payment (as defined below) ); and (ii) submit information regarding each such Potential Parachute Payment to the Company Stockholders for approval (in a manner reasonably satisfactory to ParentPurchaser and in accordance with Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder) by such number of Company Stockholders Persons entitled to vote as is required by the terms of Section 280G(b)(5)(B) of the Code, such that that, if the requisite number of Persons vote to approve such Potential Parachute Payments, all such payments and/or benefits shall not be nondeductible as a result of Section 280G of the Code. If there are any Disqualified Individuals, and, if applicablethen, prior to the Effective Time Closing, the Company shall deliver to Parent evidence satisfactory to Parent notify Purchaser (x) that a Company Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder, and, if applicable, the requisite Company Stockholder approval was obtained with respect to any Potential Parachute Payment that were made subject to the Company Stockholder vote (the “280G Approval”), or (y) that the 280G Approval was not obtained and as a consequence, that such Potential Parachute Payment shall not be made or provided, pursuant to the waivers of those Potential 280G Benefits Parachute Payments which were executed by the affected Persons Disqualified Individuals following the execution of this Agreement and not later than one day prior to the solicitation of the 280G Approval. At least five Business Days prior to the Closing, to the extent the applicable Purchaser Arrangements have not been made available to the Company in connection with the execution of this Agreement, Purchaser shall make available to the Company a summary of the Purchaser Arrangements that Purchaser or its Affiliates are providing or entering into with respect to each “disqualified individual” (within the meaning of Section 280G of the Code) set forth on Schedule 5.17(a) of the Disclosure Schedule in connection with the transactions contemplated by this Agreement that could reasonably be expected to be treated as a Potential Parachute Payment (either alone or together with any other payments to a disqualified individual); provided that, in any event, the Company’s failure to include in the stockholder voting materials described herein information regarding any Purchaser Arrangements for which a summary of such Purchaser Arrangement, or the underlying Purchaser Arrangement, was not made available to the Company by Purchaser prior to the date such stockholder voting materials were submitted will not result in a breach of the covenants set forth in this Section 5.17. In no event shall the Company be deemed in breach of this Section 5.17 if any disqualified individual refuses to execute a waiver or, after soliciting the stockholder vote in conformance with Section 280G and the regulations promulgated thereunder, the 280G Approval is not obtained. For the purposes of this Agreement, “Potential Parachute Payment” shall mean the portion of any Person’s payments and/or benefits received or retained by any Disqualified Individual in connection with the consummation of the Merger Share Purchase that is equal to or in excess of 2.99 3.0 times such PersonDisqualified Individual’s “Base Amount” (within the meaning of Section 280G(b)(3) of the Code).

Solicitation of 280G Approval. (a) Promptly following the execution of this Agreement, but in no event later than five (5) business days after the date After Parent has approved such materials pursuant to Section 6.15.2, but in any event prior to the Closing Date, the Company shall use its reasonable best efforts to (i) obtain from each Person, if any, who might receive any payments and/or benefits that may be nondeductible under Section 280G of the Code in connection with the consummation of the Merger a duly executed waiver (the “280G Waiver”) of the Potential Parachute Payment (as defined below) and (ii) submit information regarding each such Potential Parachute Payment to the Company Stockholders for approval (in a manner satisfactory to Parent) by such number of Company Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, such that all such payments and/or benefits benefits, if paid, shall not be nondeductible as a result of Section 280G of the Code, and, if applicable, prior to the Effective Time the Company shall deliver to Parent evidence satisfactory to Parent (x) that a Company Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder, and, if applicable, the requisite Company Stockholder approval was obtained with respect to any Potential Parachute Payment that were made subject to the Company Stockholder vote approval (the “280G Approval”)) and the Potential Parachute Payment subject to the 280G Waiver were reinstated, or (y) that the 280G Approval was not obtained and as a consequence, that such Potential Parachute Payment shall not be made or provided, pursuant to the waivers of those Potential 280G Benefits Waivers which were executed by the affected Persons following the execution of this Agreement. For the purposes of this Agreement, “Potential Parachute Payment” shall mean the portion of any Person’s payments and/or benefits in connection with the consummation of the Merger that is in excess of 2.99 times such Person’s “Base Amount” (within the meaning of Section 280G(b)(3) of the Code).

Solicitation of 280G Approval. (a) Promptly following Prior to the execution of this Agreement, but in no event later than five (5) business days after the date Parent has approved such materials pursuant to Section 6.1Closing, the Company shall use its reasonable best efforts to obtain from each Person, if any, who might receive any payments and/or benefits that may be nondeductible under solicit a Section 280G of the Code in connection with the consummation of the Merger parachute payment waiver from each Person listed on Schedule 6.6 who will receive a duly executed waiver (the “280G Waiver”) of the Potential Parachute Payment (as defined below) and (ii) submit each such Potential Parachute Payment Person who signs such waiver, a “Waiving Disqualified Individual”). To the extent that there are any Waiving Disqualified Individuals, then, no later than one Business Day prior to the Closing, the Company shall submit to the Company Stockholders for approval (in a manner satisfactory intended to comply with the approval procedures set forth in Section 280G of the Code and the regulations thereunder, subject to the reasonable review and approval by Parent) ), by such number of Company Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payment and/or benefits to be received by such Waiving Disqualified Individuals that may, separately or in the aggregate, constitute “parachute payments” pursuant to Section 280G of the Code (including payments and benefits to be provided by Parent and its Affiliates only to the extent such payments and such benefits have been communicated to the Company as of the date hereof) (“280G Payments”) (which determination shall be made by the Company and shall be subject to review and approval by Parent (such approval not to be unreasonably withheld, conditioned or delayed)), such that all such payments and/or and benefits shall not be nondeductible as a result of Section deemed to be 280G of the CodePayments, and, if applicable, and prior to the Effective Time Closing, the Company shall deliver to Parent evidence reasonably satisfactory to Parent (x) that a Company Stockholder stockholder vote on behalf of the Waiving Disqualified Individuals was solicited in conformance with Section 280G and the regulations promulgated thereunder, and, if applicable, the requisite Company Stockholder approval was obtained with respect to any Potential Parachute Payment that were made subject to the Company Stockholder vote thereunder (the “280G Approval”)) and that (i) such requisite 280G Approval was obtained with respect to any payments or benefits that were subject to the stockholder vote, or (yii) that the 280G Approval was not obtained and as a consequence, that such Potential Parachute Payment payments or benefits shall not be made or providedprovided to the extent they would cause any amounts to constitute 280G Payments, pursuant to the waivers of those Potential 280G Benefits payments or benefits, which were executed by the affected Persons following Waiving Disqualified Individuals prior to the execution of this Agreement. For the purposes of this Agreement, “Potential Parachute Payment” shall mean the portion of any Person’s payments and/or benefits in connection with the consummation vote of the Merger that is in excess of 2.99 times such Person’s “Base Amount” (within the meaning of Company Stockholders pursuant to this Section 280G(b)(3) of the Code)6.6.

Solicitation of 280G Approval. (a) Promptly following the execution of this Agreement, but in no event later than five (5) business days three Business Days after the date Parent has approved such materials pursuant to Section 6.1, the Company shall use its reasonable best efforts to obtain from each Person, if any, who might receive any payments and/or benefits that may be nondeductible subject to an excise tax under Section 280G of the Code in connection with the consummation of the Merger (a “Potential 280G Benefit”) a duly executed waiver with respect to any payments and/or benefits, if any, that Parent determines may separately or in the aggregate constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder) in the form to be agreed to by Parent and the Company (each, a “280G Waiver”) of the Potential Parachute Payment (as defined below) ), and (ii) submit each such Potential Parachute Payment to the Company Stockholders for approval (in a manner satisfactory to Parent) by such number of Company Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits, if any, that Parent and Company together have determined may separately or in the aggregate, constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), such that all such payments and/or and benefits shall not be nondeductible as a result of deemed to be “parachute payments” under Section 280G of the Code, and, if applicable, prior to the Effective Time the Company shall deliver to Parent evidence satisfactory to Parent (x) that a vote of the Company Stockholder vote Stockholders was solicited in conformance with Section 280G and the regulations promulgated thereunder, and, if applicable, the requisite Company Stockholder approval was obtained with respect to any Potential Parachute Payment payments and/or benefits that were made subject to the Company Stockholder vote (the “280G Approval”), or (y) that the 280G Approval was not obtained and as a consequence, consequence that such Potential Parachute Payment “parachute payments” shall not be made or provided, pursuant to the waivers of those Potential applicable 280G Benefits Waiver which were executed by the affected Persons following individuals on the execution date of this Agreement. For . (b) Any materials to be submitted to the purposes of this Agreement, “Potential Parachute Payment” shall mean the portion of any Person’s payments and/or benefits Company Stockholders in connection with the consummation Company’s solicitation of the Merger 280G Approval (the “280G Soliciting Materials”) shall be subject to review and approval by Parent. The Company will promptly advise Parent in writing if at any time prior to the Closing the Company shall become aware of any facts that is might make it necessary or appropriate to amend or supplement the 280G Soliciting Materials in excess order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable Law. Anything to the contrary contained herein notwithstanding, the Company shall not include in the 280G Soliciting Materials any information with respect to Parent or its Affiliates or associates, the form and content of 2.99 times which shall not have been consented to in writing or electronically by Parent or its legal counsel prior to such Person’s “Base Amount” (within the meaning of Section 280G(b)(3) of the Code)inclusion, except as required pursuant to applicable Law.

Solicitation of 280G Approval. (a) Promptly following the execution of this Agreement, but in no event later than five (5) business days after Agreement and prior to the date Parent has approved such materials pursuant to Section 6.1Closing Date, the Company shall use its reasonable best efforts to obtain from each Person, if any, who might receive any payments and/or benefits that may be nondeductible under Section 280G of the Code in connection with the consummation of the Merger a duly executed waiver (the “280G Waiver”) of the Potential Parachute Payment (as defined below) and (ii) submit each such Potential Parachute Payment to the Company Stockholders for approval (in a manner satisfactory to Parent) by such number of Company Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits, if any, that may separately or in the aggregate, constitute “excess parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder) (“Section 280G Payments”), such that all such payments and/or and benefits shall not be nondeductible as a result of deemed to be “excess parachute payments” under Section 280G of the Code, and, if applicable, prior to the Effective Time the Company shall deliver to Parent evidence satisfactory to Parent (xi) that a Company Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder, and, if applicable, the requisite Company Stockholder approval was obtained with respect to any Potential Parachute Payment payments and/or benefits that were made subject to the Company Stockholder vote (the “280G Approval”), or (yii) that the 280G Approval was not obtained and as a consequence, that such Potential Parachute Payment “excess parachute payments” shall not be made or provided. Notwithstanding the foregoing, pursuant the transactions contemplated by this Agreement and the Closing shall not be subject to the waivers of those Potential 280G Benefits which were executed by Company obtaining such Company Stockholder approval. (b) Any materials to be submitted to the affected Persons following the execution of this Agreement. For the purposes of this Agreement, “Potential Parachute Payment” shall mean the portion of any Person’s payments and/or benefits Company Stockholders in connection with the consummation Company’s solicitation of the Merger 280G Approval (the “280G Soliciting Materials”) shall be subject to review and approval by Parent. The Company will promptly advise Parent in writing if at any time prior to the Closing, to the Company’s Knowledge, any facts arise that is might make it necessary or appropriate to amend or supplement the 280G Soliciting Materials in excess order to make statements contained or incorporated by reference therein not misleading or to comply with applicable Legal Requirements. Anything to the contrary contained herein notwithstanding, the Company shall not include in the 280G Soliciting Materials any information with respect to Parent or its affiliates or associates, the form and content of 2.99 times which shall not have been consented to in writing by Parent prior to such Person’s “Base Amount” (within the meaning of Section 280G(b)(3) of the Code)inclusion, except as required pursuant to applicable Legal Requirements.