definiens: within the meaning of Code Section 897(c)(2 ) during the applicable period specified in CodeSection 897(c)(1)(A)(ii ) ; ( ii ) has made any payments, is obligated to make any payments, or is a party to any agreement thatcould obligate it to make any payments that will be non - deductible or subject to a material amount of excise or penalty Taxesunder Sections 280 G, 409A or 4999 of the Code ; ( iii ) has any actual or potential liability for any Taxes of any person ( otherthan the Company and its Subsidiaries ) under Treasury Regulation Section 1.1502 - 6 ( or any similar provision of law in anyjurisdiction ), or as a transferee or successor, by contract or otherwise ; or ( iv ) has participated in any asdefined in Treasury Regulation Section 1.6011 - 4