Common use of 280G Matters Clause in Contracts

280G Matters. Prior to the Closing, the Company shall submit for approval in a manner that complies with the requirements of Section 280G(b)(5)(A)(ii) of the Code and the regulations promulgated thereunder (the “Section 280G Approval”) all payments or benefits that in the absence of such approval could reasonably be expected to constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder) to any individuals that are “disqualified individuals” (within the meaning of Section 280G(c) of the Code and the regulations thereunder). To the extent that any such “disqualified individual” has the right to receive payments that could constitute “parachute payments”, the Company and the Company Subsidiaries, as applicable, shall obtain an irrevocable written waiver of such rights prior to soliciting the approval described in the immediately preceding sentence such that the Section 280G Approval shall, if successful, establish each “disqualified individual’s” right to the payment. The Company shall provide, or cause to be provided, to Buyer a draft of all Section 280G Approval related documents, including any disclosure documents and “disqualified individual” waivers. The Company shall incorporate any reasonable comments that are timely made by Buyer to the Section 280G Approval related documents. Prior to the Effective Time, the Company shall deliver to Buyer evidence that the Section 280G Approval described in this Section 6.14 was solicited and no “parachute payments” related to such vote will be payable or retained.

280G Matters. Prior to the Closing, the Company shall submit for approval in a manner that complies with the requirements of Section 280G(b)(5)(A)(ii) of the Code and the regulations promulgated thereunder (the “Section 280G Approval”) all payments or benefits that in the absence of such approval could reasonably be expected to constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder) to any individuals that are “disqualified individuals” (within the meaning of Section 280G(c) of the Code and the regulations thereunder). To the extent that any such “disqualified individual” has the right to receive payments that could constitute “parachute payments”, the Company and the Company Subsidiaries, as applicable, shall obtain an irrevocable written waiver of such rights prior to soliciting the approval described in the immediately preceding sentence such that the Section 280G Approval shall, if successful, establish each “disqualified individual’s” right to the payment. The Company shall provide, or cause to be provided, to Buyer a draft of all Section 280G Approval related documents, including any disclosure documents and “disqualified individual” waivers. The Company shall incorporate any reasonable comments that are timely made by Buyer to the Section 280G Approval related documents. Prior to the Effective Time, the Company shall deliver submit to Buyer evidence a stockholder vote (which shall be implemented via written-consent), in a manner that satisfies the stockholder vote requirements under Section 280G Approval described 280G(b)(5)(B) of the Code and regulations promulgated thereunder, the right of any “disqualified individual” (as defined in Section 280G(c) of the Code) to receive any and all payments (or other benefits) contingent on the consummation of the transactions contemplated by this Agreement (within the meaning of Section 6.14 was solicited 280G(b)(2)(A)(i) of the Code) to the extent necessary so that no payment received by such “disqualified individual” shall be a “parachute payment” under Section 280G(b) of the Code (determined without regard to Section 280G(b)(4) of the Code). Such stockholder vote shall establish the disqualified individual’s right to the payment or other compensation and no the Company shall obtain any required waivers or consents from the disqualified individual prior to the stockholder vote. In addition, the Company shall provide adequate disclosure to Company stockholders that hold Shares of all material facts concerning all payments to any such disqualified individual that, but for such stockholder vote, could be deemed “parachute payments” related under Section 280G of the Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and regulations promulgated thereunder. Parent and its counsel shall have the right to review and comment on all documents required to be delivered to the Company stockholders (at least five Business Days prior to delivery) in connection with such stockholder vote will and any required disqualified individual waivers or consents (at least five Business Days prior to execution) and Parent and its counsel shall be payable or retainedprovided copies of all vote documents executed by the stockholders and disqualified individuals.

280G Matters. Prior to the ClosingClosing Date, the Company shall use commercially reasonable efforts to solicit waivers (each, a “280G Waiver”), as applicable, from each Person who is a “disqualified individual” (as defined in Treasury Regulation 1.280G-1) of the Company (a “Disqualified Individual”) and take all actions necessary to submit and recommend for approval (such approval, the “280G Approval”), in a manner that complies with satisfies Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the requirements Code, the right of such Disqualified Individual to receive or retain, as applicable, any payments and benefits that may be considered “parachute payments” within the meaning of Section 280G(b)(5)(A)(ii280G(b)(2) of the Code and (“Parachute Payments”), such that the regulations promulgated thereunder (the “Section 280G Approval”) all payments or benefits that in the absence deduction of such approval could reasonably payments and benefits will not be expected to constitute “parachute payments” (within limited by the meaning application of Section 280G of the Code and the regulations Treasury Regulations issued thereunder) . Prior to obtaining any 280G Waiver and seeking the 280G Approval, Parent shall provide the Company with all information and documents reasonably necessary to allow the Company to determine whether any payments made or to be made or benefits granted or to be granted pursuant to any individuals that are “disqualified individuals” employment agreement or Contractual Obligation entered into or negotiated by Parent or any of its Affiliates, together with all other Parachute Payments, could reasonably be considered to be Parachute Payments and (within ii) no later than five (5) Business Days prior to the meaning of Section 280G(c) of the Code and the regulations thereunder). To the extent that any such “disqualified individual” has the right to receive payments that could constitute “parachute payments”Closing Date, the Company and the Company Subsidiaries, as applicable, shall obtain an irrevocable written waiver provide drafts of such rights prior to soliciting the approval described in the immediately preceding sentence such that the Section 280G Approval shallanalysis prepared by the Company (or third party engaged by the Company, if successfulas applicable), establish each “disqualified individual’s” right to the payment. The Company shall providedisclosure statement, or cause to be provided, to Buyer a draft of all Section 280G Waivers and 280G Approval related documentsmaterials to Parent for its review, including any disclosure documents and “disqualified individual” waivers. The Company Stockholder shall incorporate accept any reasonable comments that are timely made provided by Buyer to the Section 280G Approval related documents. Prior to the Effective Time, the Company shall deliver to Buyer evidence that the Section 280G Approval described in this Section 6.14 was solicited and no “parachute payments” related to such vote will be payable or retainedParent.

280G Matters. Prior to the Closing, the Company shall submit for use its reasonable best efforts to take such actions that are intended to ensure that the payment of any amounts or benefits (whether or not accelerated) to a “disqualified individual” (as defined in Section 280G(c) of the Code) in connection with the transactions contemplated hereunder, would not, separately or in the aggregate, reasonably be expected to result in the disallowance of a deduction to the 041945-0274-16051-Active.21513949.1 Company or its Subsidiaries, as applicable, under Section 280G of the Code in connection with the transactions contemplated hereunder, including, as necessary, (a) soliciting the requisite approval of the Company’s direct or indirect stockholders of all or a portion of any such payments or benefits, in a manner that complies with meets the shareholder approval requirements of Section 280G(b)(5)(A)(ii280G(b)(5) of the Code and Treasury Regulation Section 1.280G-1, Q/A-7 (including providing such members adequate disclosure of all material facts concerning any such payments or benefit as provided in, and otherwise conducting such solicitation in conformity with, Section 280G(b)(5)(B) of the regulations promulgated thereunder Code) and (b) to the extent necessary, attempting to obtain a waiver from each such “disqualified individual” entitled to receive any payments or benefits which would reasonably be expected, individually or when aggregated with other payments or benefits, to cause or trigger any “parachute payment” (as defined in Section 280G Approval”280G(b) all of the Code) in connection with the transactions contemplated hereunder of such disqualified individual’s right to receive the portion of such payments or benefits that in the absence of such approval could would reasonably be expected to constitute to, individually or when aggregated with other payments or benefits, cause or trigger any “excess parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder) to any individuals that are “disqualified individuals” (within the meaning of Section 280G(c) of the Code and the regulations thereunderCode). To the extent that any such “disqualified individual” has the right to receive payments that could constitute “parachute payments”, the Company and the Company Subsidiaries, as applicable, shall obtain an irrevocable written waiver of such rights prior to soliciting the approval described in the immediately preceding sentence such that the Section 280G Approval shall, if successful, establish each “disqualified individual’s” right to the payment. The Company shall provide, or cause to be provided, to provide Buyer a draft with drafts of all Section 280G Approval related documentssuch solicitation materials and consents for review and comment prior to delivery to stockholders or disqualified individuals, including any disclosure documents and “disqualified individual” waivers. The Company shall incorporate any reasonable comments that are timely made by Buyer to the Section 280G Approval related documentsas applicable. Prior to the Effective TimeClosing, the Company shall deliver to Buyer Buyer, reasonably satisfactory evidence that a vote of the Section 280G Approval described Company’s stockholders was solicited in accordance with the foregoing provisions of this Section 6.14 was solicited 7.6 and no “parachute payments” related whether or not the requisite number of stockholder votes consenting to such vote will be payable or retainedbenefits and payments was obtained with respect to such benefits and payments.