Common use of Section 280G Approval Clause in Contracts

Section 280G Approval. As soon as reasonably practicable following the date of this Agreement, but in no event later than five (5) Business Days prior to the Closing Date, the Company shall use its commercially reasonable efforts to (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 would be deemed to constitute “parachute payments” within the meaning of Section 280G of the Code and as to which such Person waives his or her rights to some or all of 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 (ii) following the execution of the waivers described in clause (i), solicit the approval of the stockholders of the Company to the extent and in the manner required under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits. Prior to soliciting such waivers and approvals, the Company shall provide drafts of such waivers and such stockholder approval materials to the Parent for the Parent’s review and approval, which such approval shall not be unreasonably withheld, conditioned or delayed. To the extent any of the Waived 280G Benefits were not approved by the equity holders of the Company as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing Date, the Company shall deliver to the 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 that either (A) the requisite number of 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. As soon as reasonably practicable following the date of this Agreementhereof, but in no event later than five (5) Business Days prior to the Closing Date, the Company AP Hostess Holdings shall (a) solicit, and use its commercially reasonable efforts to (i) obtain waivers 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 by this Agreement herein that would be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code and as to which the regulations promulgated thereunder (“Section 280G”)) a waiver of such Person waives his or her Person’s rights to some or all of 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 of the Code)is obtained, solicit, and (ii) following use commercially reasonable efforts to secure, at least three Business Days prior to the execution of the waivers described in clause (i)Closing Date, solicit the approval of the stockholders of the Company its stockholders, to the extent and in the manner required under Section Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code of and the regulations promulgated thereunder, in order to pay any Waived 280G Benefits. Prior to soliciting such waivers and approvals, the Company AP Hostess Holdings shall provide drafts of such waivers and such stockholder approval materials materials, including disclosure documents, to the Parent Buyer for the Parent’s its review and comment at least three Business Days prior to obtaining such waivers and soliciting such approval, which such approval shall not be unreasonably withheld, conditioned or delayed. To the extent any None of the Waived 280G Benefits were shall be made if they are not approved by the equity holders stockholders of the Company AP Hostess Holdings as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing Date, the Company AP Hostess Holdings shall deliver to the Parent Buyer evidence that a vote of the its stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 5.08 6.22 and that either (Ai) the requisite number of stockholder votes were was obtained with respect to the Waived 280G Benefits (the “280G Approval”), ; or (Bii) 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.

Section 280G Approval. As soon as reasonably practicable following the date of this Agreement, but in no event later than five (5) Business Days prior to the Closing Date, the Company shall use its commercially reasonable efforts to (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 would be deemed to constitute “parachute payments” within the meaning of Section 280G of the Code and as to which such Person waives his or her rights to some or all of 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 (ii) following the execution of the waivers described in clause (i), solicit the approval of the stockholders of the Company to the extent and in the manner required under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits. Prior to soliciting such waivers and approvals, the Company shall provide drafts of such waivers and such stockholder approval materials to the Parent for the Parent’s review and approval, which such approval shall not be unreasonably withheld, conditioned or delayed. To the extent any of the Waived 280G Benefits were not approved by the equity holders of the Company as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing Date, the Company shall deliver (a) obtain (or, with respect to any individual who is not a Specified Disqualified Individual, use commercially reasonable efforts to obtain) from each “disqualified individual” (within the meaning of Section 280G(c) of the Code and the regulations thereunder), a written waiver that shall provide that, if the requisite stockholder approval under Section 280G(b)(5)(B) of the Code and the regulations thereunder is not obtained, no payments and/or benefits that would separately or in the aggregate constitute “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code (“Parachute Payments”) with respect to such disqualified individual in the absence of such stockholder approval shall be payable to or retained by such disqualified individual to the Parent evidence that a vote extent such Parachute Payments would not be deductible by reason of the application of Section 280G of the Code or would result in the imposition of the excise tax under Section 4999 of the Code upon such disqualified individual; and (b) submit to the stockholders of the Company was solicited for approval, in accordance a manner and form that complies with the foregoing provisions stockholder approval procedures set forth in Section 280G(b)(5)(B) of the Code and the regulations thereunder any payments and/or benefits to a disqualified individual who provided the written waiver referred to in clause (a) that may separately or in the aggregate constitute Parachute Payments in the absence of such stockholder approval. All materials, if any, produced by the Company in connection with the implementation of this Section 5.08 shall be provided to Parent at least five (5) Business Days in advance for Parent’s review and that either (A) comment, and the requisite number Company shall consider any of votes were obtained with respect to the Waived 280G Benefits (the “280G Approval”), Parent’s requested changes or (B) that the 280G Approval was comments in good faith and not obtained, and, as a consequence, the Waived 280G Benefits shall not be made or providedunreasonably omit them.

Section 280G Approval. As soon as reasonably practicable following To the date of this Agreementextent applicable, but in the Company shall use its reasonable best efforts to (i) no event later than five (5) Business Days prior to the Closing DateClosing, the Company shall use its commercially reasonable efforts to (i) obtain solicit 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 herein that would be deemed to constitute “parachute payments” within the meaning of Section 280G of the Code and as to which such Person waives his or her rights to some or all of 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 CodeCode (“Section 280G”)) (the “Waived 280G Benefits”), and (ii) following no later than three (3) Business Days prior to the execution of Closing submit the waivers described in clause (i), solicit the approval of Waived 280G Benefits to the stockholders of the Company to the extent for approval, in a manner complying with Sections 280G(b)(5)(A)(ii) and in the manner required under Section 280G(b)(5)(B) of the Code of any Waived 280G BenefitsCode. Prior to soliciting such waivers and approvalsapproval, the Company shall provide drafts of such waivers and such stockholder approval materials to the Parent for the Parent’s its reasonable review and approval, approval (which such approval shall will not be unreasonably withheld, conditioned or delayed. To the extent any of the Waived 280G Benefits were not approved by the equity holders of the Company as contemplated above, ) no later than two (2) Business Days prior to soliciting such Waived 280G Benefits shall not be made or providedwaivers and soliciting such approval. Prior to the Closing DateEffective Time, the Company shall deliver to the 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 5.08 6.7 and that either (Ai) the requisite number of votes were of the stockholders of the Company was obtained with respect to the Waived 280G Benefits (the “280G Approval”), ) or (Bii) that the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made or provided.

Section 280G Approval. As The Corporation or its applicable Subsidiaries shall, as soon as reasonably practicable following the date of this Agreement, but Agreement and in no event later than five (5) Business Days prior to the Closing Date, the Company shall use its commercially reasonable efforts to (i) obtain waivers use commercially best efforts to secure 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 would be deemed to constitute “parachute payments” disqualified individual (within the meaning of Section 280G of the Code and as Code) a waiver, subject to which the approval described in clause (ii), of such Person waives his or her Person’s rights to some or all of 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), ) that are equal to or in excess of three times such Person’s “base amount” (within the meaning of Section 280G of the Code) less one dollar (the “Waived 280G Benefits”) and (ii) following the execution of the waivers described in clause (i), solicit the approval of the stockholders of the Company Corporation or its Subsidiaries, as applicable, to the extent and in the manner required under Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, of any Waived 280G Benefits. Prior to soliciting such waivers and approvals, the Company shall provide drafts of such waivers and such stockholder approval materials to the Parent for the Parent’s review and approval, which such approval shall not be unreasonably withheld, conditioned or delayed. To the extent any of the Waived 280G Benefits were not approved by the equity holders of the Company as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior No later than three (3) Business Days prior to the Closing Date, the Company Corporation shall deliver to the Parent evidence that (and the Parent’s legal counsel) a vote of the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 5.08 and written certification that either (A) the requisite number of votes were vote was obtained with respect to the Waived 280G Benefits (the “280G Approval”), ) or (B) that the 280G Approval was not obtained, obtained and, as a consequence, the Waived 280G Benefits have not been and shall not be made or provided, and any previously paid or provided 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 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.

Section 280G Approval. As soon as reasonably practicable Promptly following the date execution of this Agreement, but in Agreement and no event later than five two (52) Business Days prior to the Closing Date, the Company Companies shall use its 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” (ias defined in Section 280G(c) obtain waivers from each Person who has a right of the Code) to receive and retain any payments and/or or benefits as to be made or deemed made by a result of Company that would, separately or in connection with the transactions contemplated aggregate, in the absence of such approval by this Agreement that would be deemed to stockholders, constitute “parachute payments” within the meaning of pursuant to Section 280G of the Code and as a result of the transactions contemplated by this Agreement. Prior to which seeking such Person waives his or her rights stockholder approval, such Company shall obtain from each “disqualified individual” (as defined under Section 280G(c) of the Code) with a right to some or all any potential “parachute payment” (as defined under Section 280G(b)(2) of such payments and/or benefits the Code) a waiver of that right (the “Waived 280G Benefits”) applicable such that unless such payment 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 disqualified individual is approved by stockholders in a manner described in Section 280G 280G(b)(5) of the Code), and (ii) following the execution no such payment will be made. Within a reasonable period of the waivers described in clause (i), solicit the approval of the stockholders of the Company to the extent and in the manner required under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits. Prior time prior to soliciting such waivers and approvalsvote, the such Company shall provide drafts a draft of such waivers and such stockholder approval vote solicitation materials (together with any calculations and supporting documentation) to the Parent Buyer for the ParentBuyer’s review review, and approval, which such approval shall not be unreasonably withheld, conditioned or delayedCompany will consider in good faith any reasonable comments made by Buyer. To the extent that any of the Waived 280G Benefits were are not approved by the equity holders stockholders of the Company as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing Date, the Company shall deliver to the Parent evidence that a vote of the stockholders of the Company was solicited provided in accordance with the foregoing provisions of this Section 5.08 and that either (A) the requisite number of 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 providedany manner.

Section 280G Approval. As 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 date of this Agreement, but in no event later than five (5) Business Days prior to the Closing Date, the Company shall use its commercially reasonable efforts to (i) obtain solicit waivers from each such 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 would be deemed to constitute “parachute payments” within the meaning of Section 280G of the Code and as to which such Person waives shall agree to waive his or her rights to some or all of 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 CodeG), and (ii) following the execution of the waivers described in clause (i), solicit the approval of the stockholders of the Company to the extent and in the manner required under Section Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code of any Waived 280G Benefits. Prior to soliciting such waivers and approvals, the Company shall provide drafts of such waivers waiver and such stockholder approval materials to the Parent for the Parent’s review and approval, which such approval shall not be unreasonably withheld, conditioned or delayedreview. To the extent any of the Waived 280G Benefits were are not so approved by the equity holders of the Company stockholders as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing Date, the Company shall deliver to the Parent evidence that a vote of the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 5.08 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. As soon as reasonably practicable following the date of this Agreement, but in Blocker Seller shall cause Blocker to (a) no event later than five (5) Business Days prior to the Closing Date, the Company shall use its commercially reasonable efforts to (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 would be deemed to constitute “parachute payments” "disqualified individual" (within the meaning of Section 280G 280G(c) of the Code and as Code), with respect to which Blocker that is eligible to receive any payment or benefits that would constitute a "parachute payment" (within the meaning of Section 280G(b)(2)(A) of the Code), a waiver of such Person waives his or her disqualified individual's rights to some or all of such payments and/or benefits or benefits, including any arrangements entered into by Buyer or its Affiliates with any such "disqualified individual" the details of which are made available to Blocker Seller at least ten Business Days prior to the Closing Date (the “"Waived 280G Benefits”) applicable "), to such Person the extent necessary, 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 (iib) following no later than two Business Days prior to the execution of Closing Date, with respect to each individual who agrees to the waivers waiver described in clause (ia), solicit submit to a stockholder vote, in a manner intended to satisfy the approval requirements of the stockholders of the Company to the extent and in the manner required under Section 280G(b)(5)(B280G(b)(5) of the Code and any regulations promulgated thereunder, the right of any such "disqualified individual" to receive the Waived 280G Benefits. Prior Blocker Seller shall cause Blocker to soliciting such waivers and approvals, the Company shall provide drafts of such waivers and such stockholder approval materials to the Parent Buyer for the Parent’s its reasonable review and comment no later than two Business Days prior to soliciting such waivers and soliciting such approval, which such approval shall not be unreasonably withheld, conditioned or delayed. To the extent any of the Waived 280G Benefits were not approved by the equity holders of the Company as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing DateClosing, the Company if any waiver described in clause (a) above is actually obtained, Blocker Seller shall deliver to the Parent Buyer evidence reasonably acceptable to Buyer that a vote of the applicable stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 5.08 and that either (Ai) the requisite number of votes were of the applicable stockholders was obtained with respect to the Waived 280G Benefits (the “"280G Approval”), ") or (Bii) that the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made or provided.

Section 280G Approval. As soon as reasonably practicable following the date of this AgreementThe Company shall, but in no event later than five three (53) Business Days prior to the Closing Date, the Company shall (i) use its commercially reasonable efforts to (i) obtain waivers secure from each Person “disqualified individual” (within the meaning of Section 280G of the Code) of the Company or any of its Subsidiaries or parent companies who has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated by this Agreement potential right to any payments and/or benefits under any Company Plan or otherwise that would be deemed to constitute are “parachute paymentscontingent” (within the meaning of Section 280G of the Code Code) on the transactions contemplated by this Agreement and as to which such Person waives his or her rights to some or all of 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 would be deemed to be constitute “excess parachute payments” (within the meaning of Section 280G of the Code) a waiver, subject to the approval described in clause (ii), of such Person’s rights to all of such parachute payments (the “Waived 280G Benefits”) and (ii) following the execution of the waivers described in clause (i), solicit the approval of a vote from the stockholders of the Company Company, to the extent and in the manner required under Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, of any Waived 280G Benefits. Prior As soon as practicable prior to soliciting such waivers distribution of any materials to stockholders or “disqualified individuals” (within the meaning of Section 280G of the Code) in connection with the waiver and approvalsvote described in this Section 6.3, the Company shall provide drafts of such waivers and such stockholder approval materials to the Parent Merger Sub for the Parent’s its review and approval, which comment a copy of all such approval materials and a copy of its Section 280G of the Code calculations and shall not be unreasonably withheld, conditioned or delayedaccept all of Merger Sub’s reasonable comments to such documents. To the extent any Any of the Waived 280G Benefits were not which fail to be approved by the equity holders stockholders of the Company as contemplated above, such Waived 280G Benefits above shall not be made or provided. Prior to the Closing Date, the Company shall deliver to the Parent Merger Sub evidence that a vote of the Company’s stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 5.08 6.3 and that either (Ai) the requisite number of stockholder votes were was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (Bii) 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.