Common use of Limit on Payments Clause in Contracts

Limit on Payments. Notwithstanding anything in this Agreement to the contrary, in the event of a Change in Control, the total compensation (other than compensation relating to the vesting of restricted stock due to a change in control) to Employee under this Agreement and any other agreements between the Employee and Company or its subsidiaries relating to a Change in Control shall not exceed an amount equal to (i) an amount equal to 2.99 times the Employee's "annualized includible compensation for the base period" (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), over (ii) the present value of any and all "payments in the nature of compensation" (within the meaning of Section 280G of the Code and any proposed, temporary or final Treasury Regulations promulgated thereunder) to the Employee under this Agreement or any other agreement or arrangement between the Company and the Employee treated as "parachute payment(s)" under Section 280G of the Code and any proposed, temporary or final Treasury Regulations promulgated thereunder, such that no "payment in the nature of compensation" to the Employee pursuant to this Agreement or any other agreement between the Employee and the Company or its subsidiaries will constitute an "excess parachute payment" within the meaning of Section 280G of the Code. Notwithstanding the foregoing, if as a result of the vesting of any restricted stock due to a Change of Control, it is determined that any payment, distribution, acceleration or benefit received or to be received by Employee from BTFHC pursuant to this Agreement or any option plan or other plan maintained by BTFHC or its affiliates ("Payments") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended ("Code") (such tax referred to as the "Excise Tax"), then Employee shall be entitled to receive an additional payment from BTFHC ("Excise Tax Payment") in the amount of the Excise Tax. All determinations under this paragraph 10 shall be made by the Company based on the advice or counsel of its tax professional and shall be binding and conclusive on the Company and the Employee. In the event that the IRS, on audit, asserts that the Excise Tax Payment was not sufficient to cover Employee's liability for the excise tax imposed by Section 4999 of the Code, BTFHC shall make a payment to Employee equal to the additional tax determined to be due pursuant to Section 4999 of the Code and any penalties or interest assessed against Employee as a result of the insufficiency of the Excise Tax Payment.

Limit on Payments. Notwithstanding anything in this Agreement to the contrary, in the event of a Change in Control, the total compensation (other than compensation relating to the vesting of restricted stock due to a change in control) to Employee under this Agreement and any other agreements between the Employee and Company BTFHC or its subsidiaries relating to a Change in Control shall not exceed an amount equal to (i) an amount equal to 2.99 times the Employee's ’s "annualized includible compensation for the base period" (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), over (ii) the present value of any and all "payments in the nature of compensation" (within the meaning of Section 280G of the Code and any proposed, temporary or final Treasury Regulations promulgated thereunder) to the Employee under this Agreement or any other agreement or arrangement between the Company BTFHC and the Employee treated as "parachute payment(s)" under Section 280G of the Code and any proposed, temporary or final Treasury Regulations promulgated thereunder, such that no "payment in the nature of compensation" to the Employee pursuant to this Agreement or any other agreement between the Employee and the Company BTFHC or its subsidiaries will constitute an "excess parachute payment" within the meaning of Section 280G of the Code. Notwithstanding the foregoing, if as a result of the vesting of any restricted stock due to a Change of Control, it is determined that any payment, distribution, acceleration or benefit received or to be received by Employee from BTFHC pursuant to this Agreement or any option plan or other plan maintained by BTFHC or its affiliates ("Payments") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended ("Code") (such tax referred to as the "Excise Tax"), then Employee shall be entitled to receive an additional payment from BTFHC ("Excise Tax Payment") in the amount of the Excise Tax. All determinations under this paragraph 10 shall be made by the Company BTFHC based on the advice or counsel of its tax professional and shall be binding and conclusive on the Company BTFHC and the Employee. In the event that the IRS, on audit, asserts that the Excise Tax Payment was not sufficient to cover Employee's ’s liability for the excise tax imposed by Section 4999 of the Code, BTFHC shall make a payment to Employee equal to the additional tax determined to be due pursuant to Section 4999 of the Code and any penalties or interest assessed against Employee as a result of the insufficiency of the Excise Tax Payment.

Limit on Payments. Notwithstanding anything any other provision in this Agreement to the contrary, in the event of a Change in Control, that the total compensation (other than compensation relating Executive becomes entitled to the vesting of restricted stock due to a change in control) to Employee any payments or benefits under this Agreement and any portion of those payments or benefits, when added to any other agreements between the Employee and Company amount theretofore or its subsidiaries relating to a Change in Control shall not exceed an amount equal to (i) an amount equal to 2.99 times the Employee's "annualized includible compensation for the base period" (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), over (ii) the present value of any and all "payments in the nature of compensation" (within the meaning of Section 280G of the Code and any proposed, temporary or final Treasury Regulations promulgated thereunder) thereafter payable to the Employee under this Agreement or any other agreement or arrangement between the Company and the Employee treated as "parachute payment(s)" under Section 280G of the Code and any proposed, temporary or final Treasury Regulations promulgated thereunder, such that no "payment in the nature of compensation" to the Employee pursuant to this Agreement or any other agreement between the Employee and the Company or its subsidiaries will constitute an "excess parachute payment" within the meaning of Section 280G of the Code. Notwithstanding the foregoing, if Executive as a result of or in connection with the vesting of Merger by the Company, whether or not under any restricted stock due to a Change of Controlother plan, it is determined that arrangement or agreement with the Company, any payment, distribution, acceleration or benefit received or to be received by Employee from BTFHC pursuant to this Agreement person whose actions resulted in the Merger or any option plan person having such a relationship with the Company or other plan maintained by BTFHC or its affiliates such person as to require attribution of stock ownership between the parties under Section 318(a) of the Code ("the “Aggregate Payments") ”), would be subject to the excise tax imposed by Section 4999 of (the Internal Revenue Code of 1986, as amended ("Code") (such tax referred to as the "“Excise Tax"), then Employee shall be entitled to receive an additional payment from BTFHC ("Excise Tax Payment"”) in the amount of the Excise Tax. All determinations under this paragraph 10 shall be made by the Company based on the advice or counsel of its tax professional and shall be binding and conclusive on the Company and the Employee. In the event that the IRS, on audit, asserts that the Excise Tax Payment was not sufficient to cover Employee's liability for the excise tax imposed by Section 4999 of the Code, BTFHC then the payments or benefits under this Agreement shall make be reduced (first by reducing the cash payments under this Agreement, then by reducing any fringe or other benefits required to be provided under this Agreement and then by reducing the payments under any other plan, arrangement or agreement) to an amount which is one dollar ($1.00) less than the amount of the Aggregate Payments which could be made to the Executive before any portion of the Aggregate Payments was subject to the Excise Tax. For purposes of determining whether any of the Aggregate Payments will be subject to the Excise Tax, (i) any payments or benefits received or to be received by the Executive in connection with the termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with any of the Company, any person whose actions result in a payment change in ownership or control or any person having such a relationship with the Company or such person as to Employee require attribution of stock ownership between the parties under Section 318(a) of the Code) shall not be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, unless, in the opinion of tax counsel selected by the Executive and reasonably acceptable to the Company, such payments or benefits (in whole or in part) constitute parachute payments, or such excess parachute payments, if any, (in whole or in part) do not represent reasonable compensation for services actually rendered (or the refraining from the performance of services) within the meaning of Section 280G(b)(4) of the Code, (ii) the amount of the payments or benefits under this Agreement which shall be treated as subject to the Excise Tax shall be equal to the additional tax determined to be due pursuant to Section 4999 lesser of (A) the total amount of the payments under this Agreement or (B) the amount of excess parachute payments within the meaning of Sections 280G(b)(1) and (4) of the Code (after applying clause (i) above), and (iii) the value of any penalties non-cash benefits or interest assessed against Employee as a result any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the insufficiency of the Excise Tax PaymentCode.