Payment Limitation. Notwithstanding anything contained in this Amended Agreement (or in any other agreement between the Executive and the Company) to the contrary, to the extent that any payments and benefits provided under this Amended Agreement or any other plan or agreement of the Company (such payments or benefits are collectively referred to as the “Payments”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced if and to the extent that a reduction in the Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than he would have retained had he been entitled to receive all of the Payments (such reduced amount is hereinafter referred to as the “Limited Payment Amount”). The Company shall reduce the Payments by first reducing or eliminating payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date the “Determination” (as defined in Section 7(b) below) is delivered to the Company and the Executive.
Payment Limitation. Notwithstanding anything contained in this Agreement (or in any other agreement between Executive and the Company (which for this Section 7(g)(i) includes any successor)) to the contrary, to the extent that any payments and benefits provided under this Agreement or payments or benefits provided to, or for the benefit of, Executive under any other plan or agreement of (such payments or benefits are collectively referred to as the “Payments”) would be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Payments shall be reduced if and to the extent that a reduction in the Payments would result in Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than Executive would have retained had Executive been entitled to receive all of the Payments (such reduced amount is hereinafter referred to as the “Limited Payment Amount”). The Company shall reduce the Payments by first reducing or eliminating payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date the Determination (as defined below) is delivered to the Company and Executive. If no reduction applies under this Section 7(g)(i), then Executive shall be solely responsible for the payment of any excise taxes imposed upon Executive under Section 280G of the Code.
Payment Limitation. Notwithstanding any other provision ------------------ of this Note, the Corporation shall only be required to pay interest, principal or any other Amounts Payable in respect of this Note if and to the extent the Corporation's Free Cash Flow for the Corporation's fiscal year immediately preceding the required payment date is sufficient and available to make such payment. If the Corporation's Free Cash Flow for such fiscal year is not sufficient to make such payments, then such payments will not be made nor be required to be made under this Note, and the Corporation's payment obligation under this Note will be deferred until the Corporation's Free Cash Flow would permit payment under this Section 3, and such deferral of payment will not be an Event of Default under this Note, provided that the Maturity Date will not be deferred under this Section 3 for more than two years, at which time, all principal of, interest on and other Amounts Payable in respect of this Note will be due and payable. 3.2
Payment Limitation. If the Executive is a “specified employee” (as such phrase is defined in Treas. Reg. § 1.409A-1(i) (“Specified Employee”) on the Termination Date, (a) the Executive shall receive payment of any lump sum amounts described in Section 1.1(b), Section 1.1(c), Section 1.1(d), Section 1.2(b), Section 1.2(c) and Section 1.2(d) on the first day of the seventh month following the Termination Date, and (b), to the extent an annuity is payable to Executive under Section 1.1(c) or 1.2(c), or a benefit is scheduled to commence or be paid pursuant to Section 1.3(b), the commencement date of such benefit shall be deferred until the first day of the seventh month following the Termination Date. To the extent an amount is deferred under this Section 1.5, until the first business day of the seventh month following the Termination Date, the payments to which the Executive would otherwise be entitled during the first six months following the Termination Date shall be accumulated and paid to the Executive on the first business day of such seventh month and such amount shall be credited with interest or earnings as provided for under the relevant underlying plan. If there is no underlying plan or if the underlying plan does not provide for interest or earnings on deferral amounts, then the amount deferred under this Section 1.5 shall be credited with interest at the applicable federal rate determined under Section 1274 of the Code. If the Executive is not a Specified Employee on the Termination Date, (i) the Executive shall receive payment of the lump sum amounts described in Section 1.1(b), Section 1.1(c), Section 1.1(d), Section 1.2(b), Section 1.2(c) and Section 1.2(d) on the 60th day following the Termination Date and (ii) the annuity payments provided to the Executive under Section 1.1(c) or Section 1.2(c) shall commence on the 60th day following the Termination Date.
Payment Limitation. If the amounts to be paid to the Executive under this Agreement would cause the Executive to be subject to the Code §4999 excise tax, then to the extent that the total “parachute payments” (as defined in Code §280G(b)(2) are equal to or greater than three (3) times the Executive’s “base amount” (as defined in Code §280G(b)(3)), the amounts to be paid to the Executive under this Agreement which would constitute “parachute payments” shall be reduced to the extent necessary so that the total “parachute payments” shall be $1.00 less than three (3) times the Executive’s “base amount”; but the amounts to be paid shall be so reduced only if the Executive would be economically better off, on an after tax (federal and state income and federal excise) basis, receiving less under this Agreement because of the Code §4999 excise tax that would otherwise apply to the higher amount otherwise payable under this Agreement. The Company shall have complete discretion to appoint competent tax experts to make the calculations required by this Section, and the calculations made by such experts shall be final and binding upon both the Company and the Executive. Any reductions required under this Section shall come first from the payments required under Section 5(b)(i), and then from other payments required under Section 5(b) in the sole discretion of the Company.
Payment Limitation. Notwithstanding anything in this Agreement to the contrary, if the Company determines, based on the opinion of its independent accountants serving as such immediately prior to the Change in Control (the “Accounting Firm”), that any of the payments provided for in this Agreement, together with any other payments that must be included in such determination, would constitute an “Excess Parachute Payment” (as defined in Section 280G (or any successor provision thereof) of the Internal Revenue Code of 1986, as amended (the “Code”), and proposed and final regulations thereunder), the payments pursuant to this Agreement shall be reduced to the maximum amount that would permit a determination that the Executive has not received an Excess Parachute Payment (the “Maximum Amount”) unless the after-tax amount payable to the Executive hereunder without regard to the foregoing limitation (“Uncapped After-Tax Amount,” as defined below) exceeds the after-tax amount payable to the Executive with regard to such limitation (“Capped After-Tax Amount,” as defined below) by 10% or more. Any such determination or reduction in amounts payable pursuant to this Agreement shall be made in accordance with the following provisions.
Payment Limitation. Notwithstanding anything to the contrary contained in this Agreement or in any Repurchase Note delivered pursuant to the terms hereof, the Company's obligation to make a payment pursuant to a Repurchase Note delivered pursuant to Section 3(f), 4(d), 4(g) or Section 6(b) of this Agreement shall be suspended to the extent and for so long as (x) the making of such payment, together with the making of all other payments to be made during such fiscal year on account of the Company's purchases of Executive Securities pursuant to this Agreement and securities purchased pursuant to any other agreements with shareholders of the Company, would result in a violation of the Delaware Act or a breach of any covenant contained in any loan or other bona fide agreement to which the Company or any of its Subsidiaries is a party, or (y) the Company's Subsidiaries are unable to pay to the Company dividends or other distributions sufficient to permit it to pay the entire purchase price for such Executive Securities in cash as a result of applicable law or any covenant contained in any bona fide agreement to which any of such Subsidiaries are a party. If any portion of the Company's obligation to Executive or any of Executive's transferees has been tolled for a period in excess of three (3) years from the original closing date, Executive (or such transferee), by written notice delivered to the Company, may elect to rescind the sale of all Executive Securities the proceeds of sale of which are represented by unpaid notes made by the Company which are owed to Executive or such transferee. If payments are suspended pursuant to this Section 5(b), at such time as the Company is able to resume making payments without violation of the Delaware Act, applicable law or a covenant in any bona fide agreement to which the Company or any of its Subsidiaries is a party, the Company shall first make payments of arrearage owed to the former shareholders on a proportional (to the amount of arrearage) basis, and shall then make regularly scheduled payments.
Payment Limitation. Notwithstanding any other provision of this Agreement to the contrary, if the benefits and payments provided under this Agreement, either alone or together with other benefits and payments which the Employee has the right to receive either directly or indirectly from the Company or any of its affiliates, would constitute an excess parachute payment (the “Excess Payment”) under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee hereby agrees that the benefits and payments provided under this Agreement shall be reduced (but not below zero) by the amount necessary to prevent any such benefits and payments to the Employee from constituting an Excess Payment; provided, however, that such reduction shall be made only if, by reason of such reduction, the Employee’s net after-tax economic benefit shall exceed the net after-tax economic benefit to the Employee if such reduction were not made. All determinations required to be made under this Section Two, and the assumptions to be utilized in arriving at such determination, shall be made by the certified public accounting firm used for auditing purposes by the Company immediately prior to the date of the Employee’s termination of employment or, if the parties determine that the certified public accounting firm used for auditing purposes by the Company immediately prior to the date of termination cannot make such determination because of legal restrictions, the parties shall agree on a different certified public accounting firm (such certified public accounting firm is hereinafter referred to as the “Accounting Firm”), which shall promptly provide detailed supporting calculations both to the Company and the Employee. The Company shall pay all fees and expenses of the Accounting Firm.
Payment Limitation. (i) Anything in this Agreement to the contrary notwithstanding, in the event that the amount of any compensation, payment or distribution by the Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Code and the applicable regulations thereunder (the “Severance Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, the following provisions shall apply:
Payment Limitation. If the Executive is a “specified employee” (as such phrase is defined in Treas. Reg. §1.409A-1(i) (“Specified Employee”) on the Termination Date, (a) the Executive shall receive payment of any lump sum amounts described in Section 1.1(b), Section 1.1(c), Section 1.1(d), and Section 1.1(e) on the first day of the seventh month following the Termination Date. To the extent an amount is deferred under this Section 1.3, until the first business day of the seventh month following the Termination Date, the payments to which the Executive would otherwise be entitled during the first six months following the Termination Date shall be accumulated and paid to the Executive on the first business day of such seventh month and such amount shall be credited with interest or earnings as provided for under the relevant underlying plan. If there is no underlying plan or if the underlying plan does not provide for interest or earnings on deferral amounts, then the amount deferred under this Section 1.3 shall be credited with interest at the applicable federal rate determined under Section 1274 of the Code. If the Executive is not a Specified Employee on the Termination Date, (i) the Executive shall receive payment of the lump sum amounts described in Section 1.1(b), Section 1.1(c), Section 1.1(d), and Section 1.1(e), on the 75th day following the Termination Date.
