Common use of Section 280G Matters Clause in Contracts

Section 280G Matters. (a) Seller shall obtain and deliver to Buyer, prior to soliciting the vote of the stockholders of Seller with respect to the 280G Proposal, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B (the “Parachute Payment Waiver”) from each Person who is or reasonably could be, with respect to Seller, a “disqualified individual” (within the meaning of Section 280G of the Code), as determined immediately prior to the initiation of the stockholder solicitation required by this Section 4.13, and who reasonably might otherwise receive, have received, or have the right or entitlement to receive an excess parachute payment under Section 280G of the Code (which Persons are listed in Schedule 4.13(a)). (b) Prior to the Closing, Seller shall solicit the vote of the Stockholders in accordance with Section 280G(b)(5)(B) of the Code (the “280G Proposal”) so as to render, if an affirmative vote is obtained, the parachute payment provisions of Section 280G of the Code inapplicable to any and all payments and benefits provided pursuant to Contracts that, in the absence of the executed Parachute Payment Waivers by the affected Persons under Section 4.13(a)‎, might otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder approval to be solicited in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code, including Q-7 of Section 1.280G-1 of the Treasury Regulations. The results of such vote shall be provided promptly to Buyer. The documentation constituting the 280G Proposal shall be subject to Buyer’s prior review and approval.

Section 280G Matters. If requested, no less than fifteen (15) Business Days prior to the Closing Date by Purchaser in good faith, based upon calculations prepared in good faith by the Company’s advisors (which calculations shall be provided to Purchaser as soon as reasonably practicable following the date of this Agreement), the Company shall (a) Seller shall obtain and deliver use its reasonable best efforts (provided that doing so will not require any payment to Buyer, prior to soliciting the vote of the stockholders of Seller with respect to the 280G Proposal, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B (the any “Parachute Payment Waiverdisqualified individual”) to obtain from each Person who is or reasonably could be, with respect to Seller, a “disqualified individual” (within the meaning of Section 280G of the Code), as determined immediately prior to the initiation of the stockholder solicitation required by this Section 4.13, and who reasonably might otherwise receive, have received, or have the right or entitlement to receive an excess parachute payment under Section 280G 280G(c) of the Code (which Persons are listed and the regulations thereunder) who could otherwise receive payments and/or benefits that would separately or in Schedule 4.13(a)). (bthe aggregate constitute “excess parachute payments” within the meaning of Section 280G(b)(1) Prior to the Closing, Seller shall solicit the vote of the Stockholders Code on account of the transaction contemplated in accordance with this Agreement (“Parachute Payments”), a written waiver that shall provide that, if the requisite stockholder approval under Section 280G(b)(5)(B) of the Code (and the “280G Proposal”) so as to render, if an affirmative vote regulations thereunder is not obtained, no Parachute Payments with respect to such disqualified individual, in the parachute payment provisions absence of such stockholder approval, shall be payable to or retained by such disqualified individual to the extent that such Parachute Payments would not be deductible by reason of the application of Section 280G of the Code inapplicable to any and all payments and benefits provided pursuant to Contracts that, or would result in the absence imposition of the executed Parachute Payment Waivers by the affected Persons excise tax under Section 4.13(a)‎, might otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G 4999 of the CodeCode on such disqualified individual; and (b) submit to the stockholders of the Company for approval, with such stockholder approval to be solicited in a manner and form that satisfies all applicable requirements of complies with the stockholder approval procedures set forth in Section 280G(b)(5)(B) of the Code, including Q-7 of Section 1.280G-1 of Code and the Treasury Regulations. The results regulations thereunder any payments and/or benefits that may separately or in the aggregate constitute Parachute Payments in the absence of such vote stockholder approval. All materials produced by the Company in connection with the implementation of this Section 6.16 shall be provided promptly to BuyerPurchaser in advance for Purchaser’s review and comment, and the Company shall consider any of Purchaser’s requested changes or comments in good faith and not unreasonably omit them. The documentation constituting parties acknowledge that this Section 6.16 shall not apply to any Purchaser Agreements that are not provided to the 280G Proposal Company at least ten (10) days prior to Closing so that, for the avoidance of doubt, compliance with this Section 6.16 shall be subject determined as if such Purchaser Agreements had not been entered into. The Purchaser acknowledges that the Company cannot compel any “disqualified individual” to Buyer’s prior review and approvalwaive any existing rights under a contract or agreement with the Company or any Subsidiary and, provided that the Company has used its reasonable best efforts to obtain waivers from such “disqualified individuals” pursuant to Section 6.16(a), the Company shall not be deemed in breach of this Section 6.16 if any such disqualified person refuses to waive any such right.

Section 280G Matters. To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit (a) Seller shall obtain and deliver to Buyer, prior to soliciting the vote of the stockholders of Seller with respect to the 280G Proposal, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B (the “Parachute Payment Waiver”) waivers from each Person individuals who is or reasonably could be, with respect to Seller, a are “disqualified individualindividuals” (within the meaning of Section 280G) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G of the Code)Benefits”, as determined immediately and each such waiver, a “280G Waiver”) and (b) prior to the initiation Closing Date and at least one (1) calendar day following the receipt of the stockholder solicitation required by this Section 4.13, and who reasonably might otherwise receive, have received, or have the right or entitlement to receive an excess parachute payment under Section 280G Waivers, the approval of the Code (which Persons are listed Stockholder in Schedule 4.13(a)). (ba manner intended to comply with Sections 280G(b)(5)(A)(ii) Prior to the Closing, Seller shall solicit the vote of the Stockholders in accordance with Section and 280G(b)(5)(B) of the Code of any Waived 280G Benefits; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “280G ProposalParent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) so as calendar days before the Closing Date and shall cooperate with the Company in good faith in order to render, if an affirmative vote is obtained, calculate or determine the parachute payment provisions of Section 280G of value (for the Code inapplicable to any and all payments and benefits provided pursuant to Contracts that, in the absence of the executed Parachute Payment Waivers by the affected Persons under Section 4.13(a)‎, might otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with such the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder approval to be solicited voting materials described herein will not result in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) breach of the Code, including Q-7 covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 1.280G-1 of the Treasury Regulations6.9. The results of such vote Company shall be provided promptly provide to Buyer. The documentation constituting Parent at least five (5) calendar days prior to seeking the 280G Proposal shall be subject to BuyerWaivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s prior review and approvalcomment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the vote.

Section 280G Matters. (a) Seller The Company shall obtain and deliver to BuyerParent, prior to soliciting the vote initiation of the stockholders of Seller with respect to the 280G Proposalprocedure described in Section 4.17(b), an executed excess parachute payment waiver, in substantially the form attached hereto as Exhibit B (the “Parachute Payment Waiver”) H, from each Person who is or whom the Company reasonably could bebelieves is, with respect to Sellerthe Company, any Subsidiary of the Company and/or any ERISA Affiliate of the Company, a “disqualified individual” (within the meaning of Section 280G of the CodeCode and the regulations promulgated thereunder), as determined immediately prior to the initiation of the stockholder solicitation required by this procedure described in Section 4.134.17(b), and who reasonably might otherwise receivehave, have received, receive or have the right or entitlement to receive an excess parachute payment under Section 280G of the Code as a result of (i) the accelerated vesting of such Person’s Company Options or unvested Company Capital Stock in connection with the Merger and/or the termination of employment or service with the Company, Parent or any of their Subsidiaries following the Merger, (ii) any severance payments or other benefits or payments in connection with the Merger and/or the termination of employment or service with the Company, Parent or any of their Subsidiaries following the Merger, and/or (iii) the receipt of any Company Options or Company Capital Stock within the 12-month period ending on the date on which Persons are listed the Effective Time occurs, in Schedule 4.13(aaccordance with which each such Person shall agree to waive any and all right or entitlement to the accelerated vesting, payments, benefits, options and stock referred to in clauses (i), (ii) and (iii) unless the requisite shareholder approval of such accelerated vesting, payments, benefits, options and stock is obtained in accordance with Section 4.17(b). (b) Prior The Company shall use its reasonable best efforts to obtain the Closing, Seller shall solicit approval by such number of Company Shareholders as is required by the vote terms of the Stockholders in accordance with Section 280G(b)(5)(B) of the Code (the “280G Proposal”) so as to render, if an affirmative vote is obtained, render the parachute payment provisions of Section 280G of the Code inapplicable to any and all payments and and/or benefits provided pursuant to Contracts in accordance with agreements, contracts or arrangements that, in the absence of the executed Excess Parachute Payment Waivers by the affected Persons under described in Section 4.13(a)‎4.17(a), might otherwise reasonably result, individually separately or in the aggregate, in the such payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder approval to be solicited being considered a “parachute payment,” in a manner that which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the CodeCode and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of the such Treasury Regulations. The results of such vote shall be provided promptly to Buyer. The documentation constituting the 280G Proposal shall be subject to Buyer’s prior review and approval.

Section 280G Matters. As soon as practicable following the execution of this Agreement but in any case prior to the Closing: (ai) Seller shall obtain and deliver Sellers will use reasonable commercial efforts to Buyerobtain, prior to soliciting the vote initiation of the stockholders of Seller with respect to the 280G ProposalApproval, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B a waiver (the a “Parachute Payment Waiver”) ), in a form reasonably acceptable to Purchaser, from each Person who is or reasonably could beTransferred Employee who, with respect to SellerSellers, reasonably could be a “disqualified individual” (within the meaning of Section 280G of the Code)Code and the regulations promulgated thereunder) and who, as determined immediately prior with respect to the initiation of the stockholder solicitation required by this Section 4.13Sellers, and who reasonably might otherwise receive, have received, or have the right or entitlement to receive an excess any parachute payment under Section 280G of the Code (Code, pursuant to which Persons are listed in Schedule 4.13(a)). (b) Prior to Parachute Payment Waiver each such Transferred Employee will agree, unless the Closing, Seller shall solicit the vote of the Stockholders in accordance with Section 280G(b)(5)(B) of the Code (the “280G Proposal”) so as to render, if an affirmative vote is obtained, the parachute payment provisions of Section 280G of the Code inapplicable to any and all payments and benefits provided pursuant to Contracts that, in the absence of the executed Parachute Payment Waivers by the affected Persons under Section 4.13(a)‎, might otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder approval to be solicited Approval has been obtained in a manner that which satisfies all applicable requirements of Section 280G(b)(5)(B) of the CodeCode and the regulations promulgated thereunder and Internal Revenue Bulletin 2004-32, including Q-7 to waive any and all right or entitlement to the payments, acceleration of vesting and/or other benefits referred to in this Section 7.4(e) to the extent the value thereof exceeds 2.99 times such Transferred Employee’s base amount determined in accordance with Section 280G of the Code and the regulations promulgated thereunder. (ii) Sellers will use reasonable commercial efforts to submit to the Bankruptcy Courts for approval all such waived payments in a manner such that, if such approval is obtained by the Bankruptcy Courts in a manner which satisfies Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder and Internal Revenue Bulletin 2004-32, no payment or benefit received by such “disqualified individual” would be a “parachute payment” for purposes of Section 1.280G-1 280G of the Treasury RegulationsCode (the “280G Approval”). The results of such vote Prior to the Closing Date, the Sellers shall be provided promptly deliver to Buyer. The documentation constituting Purchaser evidence that the 280G Proposal Approval was solicited in accordance with the foregoing provisions of Section 7.4(e) (to the extent such 280G Approval was required to be solicited in connection with payments with respect to which Sellers were required to use reasonable commercial efforts to obtain a Parachute Payment Waiver in accordance with the foregoing provisions of Section 7.4(e)) and that either (i) 280G Approval was obtained or (ii) 280G Approval was not obtained, and as a consequence, the parachute payments subject to the Parachute Payment Waivers shall not be made or provided. (iii) In connection with the foregoing, at least five (5) days before taking such actions, the Sellers shall deliver to Purchaser for review and comment (i) parachute payment calculations prepared by the Seller or its advisors and (ii) copies of all Bankruptcy Court disclosure materials and a form of the Parachute Payment Waiver that will be used to effectuate the undertaking set forth in this Section 7.4(e), which comments by Purchaser shall be subject to Buyer’s prior review and approvalreasonably considered by the Sellers.

Section 280G Matters. Prior to the Closing Date, but in no event later than (ai) Seller shall obtain and deliver to Buyer, five (5) Business Days prior to soliciting the vote of Closing Date, the stockholders of Seller with respect will use commercially reasonable efforts to the 280G Proposal, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B (the “Parachute Payment Waiver”) obtain a written waiver from each Person individual who is or reasonably could be, with respect to Seller, a “disqualified individual” (within the meaning of as defined in Section 280G 280G(c) of the Code), as determined immediately prior to the initiation ) of the stockholder solicitation required by this portion of any and all payments and benefits that could reasonably be deemed a “parachute payment” (as defined in Section 4.13, and who reasonably might otherwise receive, have received, or have the right or entitlement to receive an excess parachute payment under Section 280G 280G(b)(2) of the Code (which Persons are listed Code) and would result in Schedule 4.13(a)). (b) Prior the imposition of an excise tax on such individual pursuant to the Closing, Seller shall solicit the vote of the Stockholders in accordance with Section 280G(b)(5)(B) 4999 of the Code (the “280G ProposalWaived Payments”) so as to render, if an affirmative vote is obtained, unless such Waived Payments are approved by the parachute payment shareholders of the Seller (or the applicable direct or indirect parent or subsidiary entity of Seller) in accordance with the provisions of Section 280G of the Code inapplicable and the regulations thereunder, and (ii) three (3) Business Days prior to any and all payments and benefits provided pursuant the Closing Date, the Seller will submit to Contracts that, its shareholders (or the shareholders of its applicable direct or indirect parent entity of Seller) for a shareholder vote (in the absence a manner reasonably designed to comply with Section 280G(b)(5)(B) of the executed Parachute Payment Waivers by Code and the affected Persons under Section 4.13(a)‎, might otherwise reasonably result, individually or in regulations thereunder) the aggregate, in the payment right of any amount such disqualified individual to receive his or her respective Waived Payments in a manner reasonably designed to cause the provision Waived Payments to be exempt from the definition of any benefit that would not be deductible “parachute payment” by reason of Section 280G of the Code, with such stockholder approval to be solicited in a manner that satisfies all applicable requirements of exemption provided under Section 280G(b)(5)(B) of the Code. Prior to delivery to the shareholders and disqualified individuals of documents in connection with the shareholder approval contemplated under this paragraph, including Q-7 of the Seller will provide the Purchaser and its counsel (i) its Section 1.280G-1 280G of the Treasury Regulations. The results of Code calculations along with the assumptions used to make the calculations, and (ii) a reasonable opportunity to review such vote shall information and comment on all documents to be provided promptly delivered to Buyer. The documentation constituting the 280G Proposal shall be subject shareholders and disqualified individuals in connection with the vote, and the Seller agrees to Buyer’s prior review and approvalconsider, in good faith, all such reasonable comments from the Purchaser.

Section 280G Matters. The Company shall seek the necessary approval from Stockholders of any payments or benefits either (a) Seller shall obtain and deliver to Buyer, prior to soliciting the vote of the stockholders of Seller with respect to the 280G Proposal, an executed parachute payment waiverunder any Plan or other agreement, in substantially each case, entered into by the form attached hereto as Exhibit B (the “Parachute Payment Waiver”) from each Person who is Company or reasonably could be, with respect to Seller, a “disqualified individual” (within the meaning any of Section 280G of the Code), as determined immediately its Subsidiaries prior to the initiation date of the stockholder solicitation required by this Section 4.13Agreement or (b) made pursuant to this Agreement, and who reasonably might otherwise receiveexcluding from both (a) and (b) hereof, have receivedfor the avoidance of doubt, any payments made pursuant to any contract, agreement, or have plan entered into by the right Buyer or entitlement its Affiliates (other than this Agreement and payments or benefits made pursuant to receive any contract, agreement, or plan entered by the Buyer or its Affiliates as long as such contract, agreement, or plan is disclosed, in writing, by the Buyer to the Company at least ten (10) business days prior to the Closing Date), which would be an “excess parachute payment payment” under Section 280G of the Code as a result of the transactions contemplated by this Agreement; provided that any communications to the Stockholders regarding such approval (including the computations of parachute payments, the identification of the “disqualified individuals” who are potential recipients of parachute payments, and the waivers of payments and/or benefits executed by the affected individuals) shall be made available to the Buyer and the Buyer shall have the right to review and approve (which Persons approval shall not be unreasonably conditioned, withheld or delayed) such communications before they are listed in Schedule 4.13(a)). (b) Prior distributed to the Closing, Seller Stockholders. The Company shall solicit deliver to the vote of Buyer prior to the Stockholders Closing reasonable evidence either (x) that the Stockholder approval was solicited in accordance conformity with Section 280G(b)(5)(B) of the Code (the “280G Proposal”) so as to render, if an affirmative vote is obtained, the parachute payment provisions of Section 280G of the Code inapplicable and the regulations promulgated thereunder and the necessary Stockholder approval was obtained with respect to any and all payments and and/or benefits provided pursuant that were subject to Contracts that, in the absence of Stockholder vote (the executed Parachute Payment Waivers by the affected Persons under Section 4.13(a)‎, might otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section “280G of the CodeApproval”), with such stockholder approval to be solicited in a manner or (y) that satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code, including Q-7 of Section 1.280G-1 of the Treasury Regulations. The results of such vote shall be provided promptly to Buyer. The documentation constituting the 280G Proposal Approval was not obtained and, as a consequence, that such “excess parachute payments” shall not be subject to Buyer’s prior review and approvalmade or provided, as authorized under the waivers of those payments and/or benefits which were executed by all of the affected individuals.

Section 280G Matters. Not less than five (a5) Seller shall obtain and deliver to Buyer, Business Days prior to soliciting the vote Closing Date, the Company shall submit to a stockholder vote, in a manner that satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the stockholders Code and the Treasury Regulations promulgated thereunder, the right of Seller with respect to the 280G Proposal, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B (the “Parachute Payment Waiver”) from each Person who is or reasonably could be, with respect to Seller, a 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 280G 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 vote, as determined immediately if obtained, shall establish each disqualified individual’s right to the payment or other compensation, and the Company shall exercise commercially reasonable efforts to obtain any required waivers or consents from the disqualified individual prior to the initiation vote. In addition, the Company shall provide adequate disclosure to Company stockholders that hold voting Company Common Stock of the stockholder solicitation required by this Section 4.13all material facts concerning all payments to any such disqualified individual that, and who reasonably might otherwise receivebut for such vote, have received, or have the right or entitlement to receive an excess could be deemed “parachute payment payments” under Section 280G of the Code (which Persons are listed in Schedule 4.13(a)). (b) Prior to the Closing, Seller shall solicit the vote of the Stockholders in accordance with Section 280G(b)(5)(B) of the Code (the “280G Proposal”) so as to render, if an affirmative vote is obtained, the parachute payment provisions of Section 280G of the Code inapplicable to any and all payments and benefits provided pursuant to Contracts that, in the absence of the executed Parachute Payment Waivers by the affected Persons under Section 4.13(a)‎, might otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder approval to be solicited in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B280G(b)(5)(B)(ii) of the CodeCode and Treasury Regulations promulgated thereunder. At least five (5) Business Days prior to the vote, including Q-7 of Section 1.280G-1 of Acquiror and its counsel shall be given the Treasury Regulations. The results of right to review and comment on all documents required to be delivered to the Stockholders in connection with such vote and any required disqualified individual waivers or consents, and the Company shall consider in good faith all comments of Acquiror thereon. Acquiror and its counsel shall be provided promptly to Buyer. The documentation constituting copies of all documents executed by the 280G Proposal shall be subject to Buyer’s prior review stockholders and approvaldisqualified individuals in connection with the vote.

Section 280G Matters. (a) Seller shall obtain and The Company will deliver to Buyerthe Purchaser reasonably detailed information setting forth all persons who may be “disqualified individuals” (as defined in Section 280G(c) of the Code) and who may be receiving payments or benefits in connection with the transactions contemplated by this Agreement (under this Agreement or any other Contract, prior to soliciting the vote plan or arrangement or otherwise, including severance payments, and acceleration of vesting or benefits under options or restricted stock), and any family or other relationships among the stockholders of Seller with respect the Company that would result in attribution of ownership under Section 318 of the Code for the purposes set forth above. Prior to the 280G ProposalClosing Date, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B (Company shall submit to a stockholder vote the “Parachute Payment Waiver”) from each Person who is or reasonably could be, with respect to Seller, a right of any “disqualified individual” 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 280G 280G(b)(2)(A)(i) of the Code) to the extent necessary so that no payment received by such “disqualified individual” would be a “parachute payment” under Section 280G(b) of the Code (determined without regard to Section 280G(b)(4) of the Code), as determined immediately prior in a manner that satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the Code and regulations promulgated thereunder. In addition, before the vote is submitted to stockholders, the Company shall provide disclosure to the initiation stockholders of the stockholder solicitation required by this Section 4.13Company that hold voting shares of the capital stock of the Company of all material facts concerning all payments that, and who reasonably might otherwise receivebut for such vote, have received, or have the right or entitlement could be deemed “parachute payments” to receive an excess parachute payment a “disqualified individual” under Section 280G of the Code (which Persons are listed in Schedule 4.13(a)). (b) Prior to the Closing, Seller shall solicit the vote of the Stockholders in accordance with a manner that satisfies Section 280G(b)(5)(B280G(b)(5)(B)(ii) of the Code and regulations promulgated thereunder (the “280G ProposalApproval”) so as ). Prior to render, if an affirmative vote is obtained, the parachute payment provisions of Section 280G delivery to the stockholders of the Code inapplicable to any and all payments and benefits provided pursuant to Contracts that, in the absence Company of the executed Parachute Payment Waivers by the affected Persons under Section 4.13(a)‎, might otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder approval documents to be solicited delivered to such stockholders in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code, including Q-7 of Section 1.280G-1 of the Treasury Regulations. The results of such vote shall be provided promptly to Buyer. The documentation constituting connection with the 280G Proposal shall be subject Approval, the Company will have provided the Purchaser and its counsel a reasonable opportunity, but in any event no fewer than five Business Days, to Buyer’s prior review and approvalcomment on final drafts of all such documents.

Section 280G Matters. Prior to the Closing, the Company shall use commercially reasonable efforts to obtain (ai) Seller shall obtain and deliver to Buyer, prior to soliciting an approval of holders of Common Stock that complies with the vote requirements of Section 280G(b)(5) of the stockholders of Seller Code and Treasury Regulations § 1.280G-1, with respect to payments and benefits that may be made or provided to any Person who, with respect to the 280G ProposalCompany, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B (the “Parachute Payment Waiver”) from each Person who is or reasonably could be, with respect to Seller, a “disqualified individual” (as such term is defined for purposes of Section 280G of the Code), if such payments and benefits could reasonably be expected to result in the imposition of an excise tax imposed under Section 4999 of the Code (such payments and benefits, “Section 280G Payments” and such vote, the “Requisite Section 280G Approval”), and (ii) a written waiver from each “disqualified individual” providing that, if the Requisite Section 280G Approval is not obtained, no Section 280G Payments shall be payable to or retained by such disqualified individual, in each case to the extent reasonably determined by the Company to be required to avoid the payment of any “excess parachute payment” within the meaning of Section 280G of the Code)Code (such waivers, as determined immediately prior to the initiation of the stockholder solicitation required by this Section 4.13, and who reasonably might otherwise receive, have received, or have the right or entitlement to receive an excess parachute payment under “Requisite Section 280G of Waivers”). All materials and information that are prepared by the Code (which Persons are listed Company and used in Schedule 4.13(a)). (b) Prior connection with any effort to obtain the Closing, Seller shall solicit the vote of the Stockholders in accordance with Section 280G(b)(5)(B) of the Code (the “280G Proposal”) so as to render, if an affirmative vote is obtained, the parachute payment provisions of Requisite Section 280G of the Code inapplicable to any Approval and all payments and benefits provided pursuant to Contracts that, in the absence of the executed Parachute Payment Waivers by the affected Persons under Section 4.13(a)‎, might otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Requisite Section 280G of the Code, with such stockholder approval to be solicited in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code, including Q-7 of Section 1.280G-1 of the Treasury Regulations. The results of such vote Waivers shall be provided promptly to Buyer. The documentation constituting Buyer in advance of distribution to holders of Common Stock or the 280G Proposal “disqualified individuals”, as applicable, and Buyer shall be subject provided with a reasonable opportunity to Buyer’s prior review and approvalcomment thereon.

Section 280G Matters. (aPrior to the Closing Date, the Company shall submit to a stockholder vote, in a manner that satisfies the stockholder approval requirements under Section 280G(b)(5)(B) Seller shall obtain and deliver to Buyer, prior to soliciting the vote of the stockholders Code and regulations promulgated thereunder, the right of Seller with respect to the 280G Proposal, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B (the “Parachute Payment Waiver”) from each Person who is or reasonably could be, with respect to Seller, a 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 280G 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 vote shall establish the disqualified individual’s right to the payment or other compensation, as determined immediately and the Company shall use commercially reasonable efforts to obtain any required waivers or consents from the disqualified individual prior to the initiation vote. In addition, the Company shall provide adequate disclosure to the Company Stockholders of the stockholder solicitation required by this Section 4.13all material facts concerning all payments to any such disqualified individual that, and who reasonably might otherwise receivebut for such vote, have received, or have the right or entitlement to receive an excess could be deemed “parachute payment payments” under Section 280G of the Code (which Persons are listed in Schedule 4.13(a)). (b) Prior to the Closing, Seller shall solicit the vote of the Stockholders in accordance with Section 280G(b)(5)(B) of the Code (the “280G Proposal”) so as to render, if an affirmative vote is obtained, the parachute payment provisions of Section 280G of the Code inapplicable to any and all payments and benefits provided pursuant to Contracts that, in the absence of the executed Parachute Payment Waivers by the affected Persons under Section 4.13(a)‎, might otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder approval to be solicited in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B280G(b)(5)(B)(ii) of the CodeCode and the regulations promulgated thereunder. The Buyer and its counsel shall be given the right to review and provide reasonable comments on all documents required to be delivered to the Company Stockholders in connection with such vote and any required disqualified individual waivers or consents within a reasonable period of time before taking such actions, including Q-7 of Section 1.280G-1 and the Company shall reflect all reasonable comments of the Treasury RegulationsBuyer thereon. The results of such vote Buyer and its counsel shall be provided promptly to Buyer. The documentation constituting copies of all documents executed by the 280G Proposal shall be subject to Buyer’s prior review Company Stockholders and approvaldisqualified individuals in connection with the vote.

Section 280G Matters. (a) Seller The Company shall obtain and deliver to BuyerParent, prior to soliciting the vote of the stockholders of Seller Stockholders with respect to the 280G Proposal, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B K (the “Parachute Payment Waiver”) from each Person who is or reasonably could be, with respect to Sellerthe Company, a “disqualified individual” (within the meaning of Section 280G of the Code), as determined immediately prior to the initiation of the stockholder Stockholder solicitation required by this Section 4.134.10, and who reasonably might otherwise receive, have received, or have the right or entitlement to receive an excess parachute payment under Section 280G of the Code (which Persons are listed in Schedule 4.13(a))Code. (b) Prior to the Closing, Seller The Company shall solicit the vote of the Stockholders in accordance with Section 280G(b)(5)(B) of the Code (the “280G Proposal”) so as to render, (i) if an affirmative vote is not obtained, the excess parachute payments that have been waived pursuant to the executed Parachute Payment Waivers will not be retained or received or (ii) if an affirmative vote is obtained, the parachute payment provisions of Section 280G of the Code inapplicable to any and all payments and benefits provided pursuant to Contracts that, in the absence of the executed Parachute Payment Waivers by the affected Persons under Section 4.13(a)‎4.10(a), might could otherwise reasonably result, individually or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder Stockholder approval to be solicited in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code, including Q-7 of Section 1.280G-1 of the Treasury Regulations. The results of such vote shall be provided promptly to BuyerParent prior to the Closing. The documentation constituting the 280G Proposal shall be subject to BuyerParent’s prior review and approval, which shall not be unreasonably withheld, conditioned or delayed. (c) In addition, the Company has received the offer letters and employment agreements provided to any “disqualified individual” by Parent or any Parent Entity or at the direction of Parent or any Parent Entity, in each case prior to or on the Closing Date and that could reasonably be expected to be taken into account in determining whether any payments and benefits constitute “parachute payment” pursuant to Section 280G of the Code with respect to any such Person in connection with the Transactions.