Limitation on Certain Payments. Notwithstanding any other provision of this Agreement:
Limitation on Certain Payments. (i) In the event it is determined pursuant to clause (ii) below, that part or all of the consideration, compensation or benefits to be paid to Employee under this Agreement in connection with Employee's termination of employment following a Change of Control or under any other plan, arrangement or agreement in connection therewith, constitutes a "parachute payment" (or payments) under Section 280G(b)(2) of the Code, then, of the aggregate present value of such parachute payments (the "Parachute Amount") exceeds 2.99 times the Employee Base Amount, the amounts constituting "parachute payments" which would otherwise be payable to or for the benefit of Employee shall be reduced to the extent necessary such that the Parachute Amount is equal to 2.99 times the Employee Base Amount. Employee shall have the right to choose which amounts that would otherwise be due him but for the limitations described in this paragraph shall be subject to reduction. Notwithstanding the foregoing, if it is determined that stockholder approval of the payment of such compensation and benefits will reduce the applicability of Section 280G of the Code to such payment, promptly after request by Employee, Company will undertake reasonable efforts to hold such a meeting to obtain such approval or to solicit such approval by written consent, and to obtain such approval.
Limitation on Certain Payments. (a) Notwithstanding anything in this Agreement to the contrary, in the event it is determined by reasonable computation by a nationally recognized certified public accounting firm that is designated by the Company prior to the Change of Control (which accounting firm shall in no event be the accounting firm for the entity seeking to effectuate such Change of Control) (the “Accountant”), which determination shall be reflected in a document delivered to the Employee setting forth in reasonable detail the basis of the Accountant’s calculations (including any assumptions that the Accountant made in performing the calculations), that part or all of the consideration, compensation or benefits to be paid to the Employee under this Agreement or otherwise constitute “parachute payments” under Section 280G(b)(2) of the Code, then, if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to the Employee under any other plan, arrangement or agreement which constitute “parachute payments” (collectively, the “Parachute Amount”) exceeds the maximum amount that would not give rise to any liability under Section 4999 of the Code, the amounts constituting “parachute payments” which would otherwise be payable to the Employee or for the Employee’s benefit shall be reduced to the maximum amount that would not give rise to any liability under Section 4999 of the Code (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Accountant determines that without such reduction the Employee would be entitled to receive and retain, on a net after-tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code in respect of the Parachute Amount), an amount that is greater than the amount, on a net after-tax basis, that the Employee would be entitled to retain upon receipt of the Reduced Amount. For the avoidance of doubt, this provision, shall reduce the Parachute Amount otherwise payable to the Employee, only if doing so would place the Employee in a better net after-tax economic position as compared with not doing so (taking into account any excise taxes payable in respect of such Parachute Amount). In connection with making determinations under this Section 7(a), the Accountant shall take into account any positions to mitigate any excise taxes payable under Section 4999 of the Code, such as the value of any rea...
Limitation on Certain Payments. Notwithstanding anything contained herein, if any of the Payments provided for in this Agreement, together with any other payments of Compensation which the Executive receives from the Company, would constitute a "Parachute Payment" (as defined in Section 280G(b)(2) of the Code), the Payments pursuant to this Agreement shall be reduced to the largest amounts as will result in no portion of such Payments being subject to the excise tax imposed in Section 4999 of the Code; provided however, that the Executive and the Company shall mutually agree to the amount of such Payments as otherwise would be paid but for the foregoing limitation of this Section 6, in equal installments such that the present value (applicable present value discount rate shall be in accordance with Section 280G(d)(4) of the Code) of such installments will result in no portion of such Payments to be treated as Parachute Payments under the Code. The first such installment shall be payable when such amount would otherwise have been payable; provided further, however, that the Executive and the Company shall mutually agree to the allocation of any reductions required by this Section 6.
Limitation on Certain Payments. Notwithstanding anything herein to the contrary, in the event that the Executive shall become entitled to payments pursuant to Section 9(d)(ii) hereof ("Change of Control Payments"), if the value of the Change of Control Payments plus any other amount that is paid or distributed or distributable to the Executive would constitute an excess parachute payment under Section 280G of the Code, the amount payable or distributable to or for the benefit of the Executive hereunder shall be reduced to the Alternate Payment. The "Alternate Payment" shall be an amount expressed in present value which maximizes the aggregate present value of the amounts payable or distributable to the Executive hereunder without causing any such amounts to be nondeductible by the Company pursuant to Section 280G of the Code. The value of the Change of Control Payments shall be determined in accordance with temporary or final regulations, if any, promulgated under Section 280G of the Code and based upon the advice of counsel selected by the Company's independent auditors. The value of any noncash benefit or any deferred payment or benefit shall be determined in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
Limitation on Certain Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined in 9(e) below) shall determine that receipt of all Payments (as defined in 9(e) below) would subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined in 9(e) below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined in 9(e) below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined in 9(e) below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt (as defined in 9(e) below) of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.
Limitation on Certain Payments. The Company will not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Company's capital stock (which includes common and preferred stock) (other than (a) dividends or distributions in shares of, or options, warrants or rights to subscribe for or purchase shares of, Common Stock of the Company, (b) any declaration of a dividend in connection with the implementation of a shareholder's rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (c) as a result of a reclassification of the Company's capital stock or the exchange or the conversion of one class or series of the Company's capital stock for another class or series of the Company's capital stock, (d) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, and (e) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers, employees or consultants or any of the Company's dividend reinvestment plans), (ii) make any payment of principal, premium, if any, or interest on or repay or repurchase or redeem any debt securities of the Company that rank pari passu with or junior in right of payment to the Securities or (iii) make any guarantee payments with respect to any guarantee by the Company (other than payments under the Preferred Securities Guarantee) of the debt securities of any Subsidiary of the Company if such guarantee ranks pari passu or junior in right of payment with or to the Securities if at such time (1) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice or the lapse of time, or both, would constitute an Event of Default and (b) in respect of which the Company shall not have taken reasonable steps to cure, (2) an Event of Default hereunder shall have occurred and be continuing, (3) if such Securities are held by the Property Trustee, the Company shall be in default with respect to its payment obligations under the Preferred Securities Guarantee or (4) the Company shall have given notice of its election of the exercise of its right to extend the interest payment period pursuant to Section 2.13(a) and any such extension shall be continuing...
Limitation on Certain Payments. Make (a) any payment of dividends, stock repurchases or redemptions or other distributions to shareholders of the Borrower, (b) any payment of principal of or interest on any subordinated debt (other than regularly scheduled principal and interest on subordinated debt, in each case, subject to the subordination provisions thereof), or (c) any prepayment, early redemption, repurchase prior to maturity or other acquisition or defeasance of any other Indebtedness (other than a prepayment, redemption or repurchase arising in connection with (i) the refinancing of such Indebtedness and (ii) a conversion of such Indebtedness to equity securities) if, in any such case, the pro forma Leverage Ratio after giving effect to the relevant payment or other transaction described above would be greater than (i) if the Borrower’s Debt Rating issued by S&P is BBB- or higher, 3.0 to 1.00; or (ii) otherwise 2.50 to 1.00.
Limitation on Certain Payments. Notwithstanding the provisions of Sections 5(d) or 5(e), in the event of a Change of Control, the Executive’s right to receive the lump sum cash payment following a termination of employment pursuant to Section 5(d)(i)(B), 5(d)(i)(C), 5(e)(i)(B) or 5(e)(i)(C) shall terminate on March 15th of the calendar year following the calendar year in which the Window Period commenced, and no such amount shall be payable thereafter. Subject to the preceding sentence, if a Change of Control occurs during the Employment Period, then (regardless of when the Employment Period would otherwise end under any other provision of this Agreement) Section 5(e), and all other parts of this Agreement which relate to Section 5(e), shall continue to apply to the Executive for 18 months after the Change of Control.”
Limitation on Certain Payments. Make any payment of dividends, stock repurchases or redemptions or other distributions to shareholders of the Borrower (other than a payment made in common stock of the Borrower) or permit any Subsidiary to purchase stock of the Borrower, if, in any such case, the pro forma Leverage Ratio after giving effect to the relevant payment or other transaction described above would be greater than (i) if the Borrower’s Debt Rating issued by S&P or Fitch is BBB- or higher, 3.00 to 1.00; or (ii) otherwise, 2.50 to 1.00.
