Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company by the Company’s independent accountant. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.
Limitation on Payments and Benefits. Notwithstanding any other provision of this Agreement to the contrary, in the event that it shall be determined (as hereafter provided) that any payment or distribution by FTD or any of its affiliates to the Executive or for the Executive’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing, would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto), by reason of being considered “contingent on a change in ownership or control” of FTD within the meaning of Section 280G of the Code (or any successor provision thereto), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such taxes, then such payments and benefits to be paid or provided shall be reduced to an amount (but not below zero) that would result in the maximum possible net after tax receipts to the Executive from all such payments or distributions (determined by reference to the present value determined in accordance with Section 280G(d)(4) of the Code (or any successor provision thereto) of all such payments net of all such taxes, or any interest or penalties with respect to such taxes, determined by applying the highest marginal rate under Section 1 of the Code (or any successor provision thereto) that applied to the Executive’s taxable income for the immediately preceding taxable year) (the “Reduced Amount”). The fact that the Executive’s payments or benefits may be reduced by reason of the limitations contained in this paragraph will not of itself limit or otherwise affect any of the Executive’s other rights other than pursuant to this Agreement. If it is determined that the Executive should receive a Reduced Amount, FTD will provide the Executive notice to that effect and a copy of the detailed calculation thereof. The Executive will then be entitled to designate the payments or benefits to be so reduced in order to give effect to this paragraph. In the event that the Executive fails to make such designation within ten business days of notification of the reduction in pay...
Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, no amount or benefit shall be paid or provided under this Agreement or otherwise to an extent or in a manner that would result in payments or benefits (or other compensation) not being fully deductible by the Company or an Affiliate for federal income tax purposes because of Section 280G of the Code, or any successor provision thereto (or that would result in Executive being subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto). The determination of whether any such payments or benefits to be provided under this Agreement or otherwise would not be so deductible (or whether Executive would be subject to such excise tax) shall be made at the expense of the Company, if requested by either Executive or the Company, by a firm of independent accountants or a law firm selected by the Company and reasonably acceptable to Executive. In the event that any payment or benefit intended to be provided under this Agreement or otherwise would constitute a “parachute payment,” as defined in Section 280G of the Code, the Company shall designate the payments and/or benefits (beginning with cash payments) to be reduced or modified so that the Company or an Affiliate is not denied any federal income tax deductions for any such parachute payment because of Section 280G of the Code (or so that Executive is not subject to the excise tax imposed by Section 4999 of the Code).
Limitation on Payments and Benefits. Notwithstanding any other provision of this Agreement, payments pursuant to this Agreement shall be subject to the following limitations:
Limitation on Payments and Benefits. (a) If any of the payments and benefits provided under this Agreement and/or under any other agreement with, or plan of, the Company or one of its subsidiaries (the "Total Payment") (a) constitute a "parachute payment" as defined in Code Section 280G and exceed three (3) times the Executive's "base amount" as defined under Code Section 280G(b)(3) by less than ten percent (10%) of three (3) times the Executive's base amount, and (b) would, but for this Section 4.1, be subject to the excise tax imposed by Code Section 4999, then the Executive's payments and benefits under this Agreement shall be reduced and payable only as to the maximum amount which would result in no portion of such Total Payment being subject to excise tax under Code Section 4999.
Limitation on Payments and Benefits. Notwithstanding anything in this Agreement to the contrary, the sum of the maximum amount payable and the value of the benefits provided to Executive pursuant to this Section 2 and Section 6(a) shall be limited to 2.99 times the sum of Executive’s Base Pay and Bonus (as defined in Section 23). In the event a reduction is required pursuant hereto, unless Executive is permitted by the Company to choose the order of reduction, the order of reduction shall be first any Gross-Up Payment provided pursuant to Section 6(a), next all other cash payments on a pro rata basis, then any equity compensation on a pro rata basis, and lastly medical and dental coverage.
Limitation on Payments and Benefits. Notwithstanding anything in this Agreement to the contrary, if any of the payments or benefits to be made or provided in connection with this Agreement, together with any other payments, benefits or awards which you have the right to receive from the Company, or any corporation which is a member of an "affiliated group" (as defined in section 1504(a) of the Code without regard to section 1504(b) of the Code) of which the Company is a member ("Affiliate"), constitute an "excess parachute payment" (as defined in section 280G(b) of the Code), such payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company or its Affiliates, may be reduced, eliminated, modified or waived to the extent necessary to prevent all, or any portion, of such payments, benefits or awards from becoming "excess parachute payments" and therefore subject to the excise tax imposed under section 4999 of the Code. You will have the sole right and discretion to determine whether the payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company, should be reduced, whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that "payments" under such agreement be reduced). You will also have the right to designate the particular payments, benefits or awards that are to be reduced, eliminated, modified or waived; provided that no such adjustment will be made if it results in additional expense to the Company in excess of expenses the Company would have experienced if no adjustment had been made. The determination as to whether any such decrease in the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by you and reasonably acceptable to the Company, and such determination will be conclusive and binding upon you and the Company. The Company will pay or reimburse you on demand for the reasonable fees, costs and expenses of the counsel or accountant selected to make the determinations under this clause (c).
Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, no amount or benefit shall be paid or provided under this Agreement to an extent or in a manner that would result in payments or benefits (or other compensation) not being fully deductible by the Company or an Affiliate for federal income tax purposes because of Section 280G of the Code, or any successor provision thereto (or that would result in the Executive being subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto). The determination of whether any such payments or benefits to be provided under this Agreement or otherwise would not be so deductible (or whether the Executive would be subject to such excise tax) shall be made at the expense of the Company, if requested by either the Executive or the Company, by a firm of independent accountants or a law firm selected by the Company and reasonably acceptable to the Executive. The Company and the Executive shall cooperate to submit for approval by the shareholders of the Company, AMH II or another applicable Affiliate, in accordance with Section 280G(b)(5) of the Code, payments and benefits that may be made or provided to the Executive that may otherwise be considered “parachute payments,” as defined in Section 280G(b)(2) of the Code. In the event that any payment or benefit intended to be provided under this Agreement or otherwise would constitute a “parachute payment,” as defined in Section 280G of the Code, the Executive shall be entitled to designate the payments and/or benefits (beginning with cash payments) to be reduced or modified so that the Company or an Affiliate is not denied any federal income tax deductions for any such parachute payment because of Section 280G of the Code (or so that the Executive is not subject to the excise tax imposed by Section 4999 of the Code). The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within ten (10) business days after the date his employment with the Company or an Affiliate terminates, the Company may effect such reduction in any manner it deems appropriate (beginning with cash payments).
Limitation on Payments and Benefits. Notwithstanding anything in this Agreement to the contrary, if any of the payments or benefits to be made or provided in connection with this Agreement, together with any other payments, benefits or awards which you have the right to receive from the Company, or any corporation which is a member of an “affiliated group” (as defined in section 1504(a) of the Code without regard to section 1504(b) of the Code) of which the Company is a member (“Affiliate”), constitute an “excess parachute payment” (as defined in section 280G(b) of the Code), two calculations will be performed. In the first calculation, the payments, benefits or awards will be reduced by the amount the Company deems necessary so that none of the payments or benefits under the Agreement (including from the existing Stock Option and Incentive Plan) are excess parachute payments. In the second calculation, the payments will not be reduced so as to eliminate an excess parachute payment, but will be reduced by the amount of the applicable excise tax as imposed by section 4999 of the Code. The two calculations will be compared and the calculation providing the largest net payment to the employee will be utilized. The calculations must be made in good faith by legal counsel or a certified public accountant selected by the Company, and such determination will be conclusive and binding upon you and the Company. If a reduction in payments or benefits is required by the comparison above, the payments or benefits under the Agreement shall be reduced in the order that minimizes the amount of total reduction in payments and benefits under the Agreement as a result of this provision.
Limitation on Payments and Benefits. Notwithstanding anything in this Agreement to the contrary, the sum of the maximum amount payable and the value of the benefits provided to Executive pursuant to this Section 2 and Section 6(a) shall be limited to 2.99 times the sum of Executive’s Base Pay and Bonus (as defined in Section 23). In the event a reduction is required pursuant hereto, unless Executive is permitted by the Company to choose the order of reduction, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis, and lastly medical and dental coverage.
