Limitation on Payments Clause Example with 28 Variations from Business Contracts

Limitation on Payments. 7.1Notwithstanding any other provisions of (a) Notwithstanding anything in this Agreement, in Agreement to the event that contrary, if any payment or benefit distribution received or to be received by Executive (including any payment or benefit received in connection with a Change in Control or the termination of Executive's employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all 5 such payments and benefits, including the payments and benefi...ts under Section 5 and Section 6 3 of this Agreement, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), part) to the excise tax imposed under Exhibit 10.2 by Code Section 4999 of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments Executive's remaining Total Payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For The reduction undertaken pursuant to this Section 4 shall be accomplished first by reducing or eliminating any cash payments subject to Code Section 409A as deferred compensation (with payments to be made furthest in the future being reduced first), then by reducing or eliminating cash payments that are not subject to Code Section 409A, then by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) subject to Code Section 409A as deferred compensation (with payments to be made furthest in the future being reduced first), and finally by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) that is not subject to Code Section 409A. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments Payments, the receipt or enjoyment retention of which Executive shall have has waived at such time and in such manner so as not to constitute a "payment" within the meaning of Code Section 280G(b) of the Code shall 280G(b), will be taken into account, account; (ii) no portion of the Total Payments shall will be taken into account which, in the written opinion of an independent, nationally recognized accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent (the "Independent Advisors") selected by the Company, does not constitute a "parachute payment" within the meaning of Code Section 280G(b)(2) of the Code (including by reason of Code Section 280G(b)(4)(A) of the Code) 280G(b)(4)(A)) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B) of the Code, 280G(b)(4)(B), in excess of the Base Amount (as "base amount"(as defined in Code Section 280G(b)(3) of the Code) 280G(b)(3)) allocable to such reasonable compensation, compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Code Sections 280G(d)(3) and (4) of the Code. (4). View More

Limitation on Payments. 7.1Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by Executive (including any payment or benefit received in connection with a Change in Control or the termination of Executive's employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 5 and Section 6 of this Agreement, being hereinafter ref...erred to as the "Total Payments") would be subject (in whole or part), to the excise tax imposed under Exhibit 10.2 Section 4999 of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a "payment" within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of an accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent Advisors") selected by the Company, does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. View More

Limitation on Payments. 7.1Notwithstanding any other provisions of (a) Notwithstanding anything in this Agreement, in Agreement to the event that contrary, if any payment or benefit distribution received or to be received by Executive (including any payment or benefit received in connection with a Change in Control or the termination of Executive's employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits... under Section 5 and Section 6 3 of this Agreement, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), part) to the excise tax imposed under Exhibit 10.2 by Code Section 4999 of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments Executive's remaining Total Payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For The reduction undertaken pursuant to this Section 4 shall be accomplished first by reducing or eliminating any cash payments subject to Code Section 409A as deferred compensation (with payments to be made furthest in the future being reduced first), then by reducing or 5 eliminating cash payments that are not subject to Code Section 409A, then by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) subject to Code Section 409A as deferred compensation (with payments to be made furthest in the future being reduced first), and finally by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) that is not subject to Code Section 409A. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments Payments, the receipt or enjoyment retention of which Executive shall have has waived at such time and in such manner so as not to constitute a "payment" within the meaning of Code Section 280G(b) of the Code shall 280G(b), will be taken into account, account; (ii) no portion of the Total Payments shall will be taken into account which, in the written opinion of an independent, nationally recognized accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent (the "Independent Advisors") selected by the Company, does not constitute a "parachute payment" within the meaning of Code Section 280G(b)(2) of the Code (including by reason of Code Section 280G(b)(4)(A) of the Code) 280G(b)(4)(A)) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B) of the Code, 280G(b)(4)(B), in excess of the Base Amount (as "base amount"(as defined in Code Section 280G(b)(3) of the Code) 280G(b)(3)) allocable to such reasonable compensation, compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Code Sections 280G(d)(3) and (4) of the Code. (4). View More

Limitation on Payments. 7.1Notwithstanding A. Best Pay Cap. Notwithstanding any other provisions provision of this Agreement, in the event that any payment or benefit received or to be received by Executive Employee (including any payment or benefit received in connection with a Change in Control or the termination of Executive's Employee's employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under S...ection 5 and Section 6 set forth in Exhibit A of this Agreement, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), part) to the excise tax ("Excise Tax") imposed under Exhibit 10.2 Section 4999 of the Internal Revenue Code (the "Excise Tax"), of 1986, as amended ("Code"), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments Employee's remaining Total Payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For The reduction undertaken pursuant to this Section 5(a) shall be accomplished first by reducing or eliminating any cash payments subject to Section 409A of the Code as deferred compensation (with payments to be made furthest in the future being reduced first), then by reducing or eliminating cash payments that are not subject to Section 409A of the Code, then by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) subject to Section 409A of the Code as deferred compensation (with payments to be made furthest in the future being reduced first), and finally, by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) that is not subject to Section 409A of the Code; provided that all payments to which Treas. Reg. §1.280G-1, Q&A-24(b) or (c) does not apply shall be reduced or eliminated before any payments to which Treas. Reg. §1.280G-1, Q&A-24(b) or (c) applies. B. Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments Payments, the receipt or enjoyment retention of which Executive shall have Employee has waived at such time and in such manner so as not to constitute a "payment" within the meaning of Section 280G(b) of the Code shall Code, will be taken into account, account; (ii) no portion of the Total Payments shall will be taken into account which, in the written opinion of an independent, nationally recognized accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent Advisors") selected by the Company, does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. View More

Limitation on Payments. 7.1Notwithstanding 7.1 Best Pay Cap. Notwithstanding any other provisions provision of this Agreement, the Plan, in the event that any payment or benefit received or to be received by Executive a Participant (including any payment or benefit received in connection with a Change in Control or the termination of Executive's the Participant's employment, whether pursuant to the terms of this Agreement the Plan or any other plan, arrangement or agreement) (all such payments and benefits, including t...he payments and benefits under Section 5 and Section 6 of this Agreement, Severance Benefits, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), to the excise tax imposed under Exhibit 10.2 Code Section 4999 of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments Cash Severance benefits under the Plan shall first be reduced, and the non-cash any noncash severance payments shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) (a) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) (b) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive the Participant would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For 7.2 Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) (a) no portion of the Total Payments Payments, the receipt or enjoyment retention of which Executive shall have the Participant has waived at such time and in such manner so as not to constitute a "payment" within the meaning of Code Section 280G(b) of the Code shall 280G(b), will be taken into account, (ii) account; (b) no portion of the Total Payments shall will be taken into account which, in the written opinion of an independent, nationally recognized accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent (the "Independent Advisors") selected by the Company, does not constitute a "parachute payment" within the meaning of Code Section 280G(b)(2) of the Code (including by reason of Code Section 280G(b)(4)(A) of the Code) 280G(b)(4)(A)) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B) of the Code, 280G(b)(4)(B), in excess of the Base Amount "base amount" (as defined in Code Section 280G(b)(3) of the Code) 280G(b)(3)) allocable to such reasonable compensation, compensation; and (iii) (c) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Code Sections 280G(d)(3) and (4) (4). 7 8. No Mitigation. No Participant shall be required to seek other employment or attempt in any way to reduce or mitigate any Severance Benefits payable under the Plan and the amount of the Code. any such Severance Benefits shall not be reduced by any other compensation paid or provided to any Participant following such Participant's termination of employment. View More

Limitation on Payments. 7.1Notwithstanding A. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by Executive (including any payment or benefit received in connection with a Change in Control or the termination of Executive's employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 5 and Section 6 of this Agreement, 9 ...hereof, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), to the excise tax imposed under Exhibit 10.2 Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to Executive that are exempt from Section 409A (as defined below), (B) reduction of any other cash payments or benefits otherwise payable to Executive that are exempt from Section 409A, but excluding any payments attributable to the acceleration of vesting or payments with respect to any stock option or other equity award with respect to the Company's Common Stock that are exempt from Section 409A, (C) reduction of any other payments or benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A, but excluding any payments attributable to the acceleration of vesting and payments with respect to any stock option or other equity award with respect to the Company's Common Stock that are exempt from Section 409A, and (D) reduction of any payments attributable to the acceleration of vesting or payments with respect to any stock option or other equity award with respect to the Company's Common Stock that are exempt from Section 409A. B. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a "payment" within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of an accounting firm or compensation consulting firm with independent auditors of nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent Advisors") selected by the Exhibit 10.9 Company, does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. View More

Limitation on Payments. 7.1Notwithstanding (a) Best Pay Cap. Notwithstanding any other provisions provision of this Agreement, in the event that any payment or benefit received or to be received by Executive you (including any payment or benefit received in connection with a Change in Control or the termination of Executive's your employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 5 a...nd Section 6 8 of this Agreement, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), part) to the excise tax imposed under Exhibit 10.2 Section 4999 of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments your remaining Total Payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For The reduction undertaken pursuant to this Section 9(a) shall be accomplished first by reducing or eliminating any cash payments subject to Section 409A of the Code as deferred compensation (with payments to be made furthest in the future being reduced first), then by reducing or eliminating cash payments that are not subject to Section 409A of the Code, then by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) subject to Section 409A of the Code as deferred compensation (with payments to be made furthest in the future being reduced first), and finally by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) that is not subject to Section 409A of the Code. (b) Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments Payments, the receipt or enjoyment retention of which Executive shall you have waived at such time and in such manner so as not to constitute a "payment" within the meaning of Section 280G(b) of the Code shall Code, will be taken into account, account; (ii) no portion of the Total Payments shall will be taken into account which, in the written opinion of an independent, nationally recognized accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent (the "Independent Advisors") selected by the Company, does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in 8 excess of the Base Amount "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. View More

Limitation on Payments. 7.1Notwithstanding (a) Best Pay Cap. Notwithstanding any other provisions provision of this Agreement, in 7 the event that any payment or benefit received or to be received by Executive you (including any payment or benefit received in connection with a Change in Control or the termination of Executive's your employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 5... and Section 6 8 of this Agreement, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), part) to the excise tax imposed under Exhibit 10.2 Section 4999 of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments your remaining Total Payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For The reduction undertaken pursuant to this Section 9(a) shall be accomplished first by reducing or eliminating any cash payments subject to Section 409A of the Code as deferred compensation (with payments to be made furthest in the future being reduced first), then by reducing or eliminating cash payments that are not subject to Section 409A of the Code, then by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) subject to Section 409A of the Code as deferred compensation (with payments to be made furthest in the future being reduced first), and finally by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) that is not subject to Section 409A of the Code. (b) Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments Payments, the receipt or enjoyment retention of which Executive shall you have waived at such time and in such manner so as not to constitute a "payment" within the meaning of Section 280G(b) of the Code shall Code, will be taken into account, account; (ii) no portion of the Total Payments shall will be taken into account which, in the written opinion of an independent, nationally recognized accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent (the "Independent Advisors") selected by the Company, does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. View More

Limitation on Payments. 7.1Notwithstanding (a) Best Pay Cap. Notwithstanding any other provisions provision of this Agreement, in the event that any payment or benefit received or to be received by Executive you (including any payment or benefit received in connection with a Change in Control or the termination of Executive's your employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 5 a...nd Section 6 of this Agreement, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), part) to the excise tax imposed under Exhibit 10.2 Section 4999 of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments your remaining Total Payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For The reduction undertaken pursuant to this Section 7(a) shall be accomplished first by reducing or eliminating any cash payments subject to Section 409A of the Code as deferred compensation (with payments to be made furthest in the future being reduced first), then by reducing or eliminating cash payments that are not subject to Section 409A of the Code, then by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) subject to Section 409A of the Code as deferred compensation (with payments to be made furthest in the future being reduced first), and finally by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) that is not subject to Section 409A of the Code. (b) Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments Payments, the receipt or enjoyment retention of which Executive shall you have waived at such time and in such manner so as not to constitute a "payment" within the meaning of Section 280G(b) of the Code shall Code, will be taken into account, account; (ii) no portion of the Total Payments shall will be taken into account which, in the written opinion of an independent, nationally recognized accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent (the "Independent Advisors") selected by the Company, does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in 7 excess of the Base Amount "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. View More

Limitation on Payments. 7.1Notwithstanding 6.6Best Pay Cap. Notwithstanding any other provisions provision of this Agreement, the Plan, in the event that any payment or benefit received or to be received by Executive a Participant (including any payment or benefit received in connection with a Change in Control or the termination of Executive's the Participant's employment, whether pursuant to the terms of this Agreement the Plan or any other plan, arrangement or agreement) (all such payments and benefits, including th...e payments and benefits under Section 5 and Section 6 of this Agreement, Severance 7 Benefits, being hereinafter referred to as the "Total Payments") would be subject (in whole or part), to the excise tax imposed under Exhibit 10.2 Code Section 4999 of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments Cash Severance benefits under the Plan shall first be reduced, and the non-cash any noncash severance payments shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) (a) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) (b) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive the Participant would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7.2For 6.7Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) (a) no portion of the Total Payments Payments, the receipt or enjoyment retention of which Executive shall have the Participant has waived at such time and in such manner so as not to constitute a "payment" within the meaning of Code Section 280G(b) of the Code shall 280G(b), will be taken into account, (ii) account; (b) no portion of the Total Payments shall will be taken into account which, in the written opinion of an independent, nationally recognized accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters ("Independent (the "Independent Advisors") selected by the Company, does not constitute a "parachute payment" within the meaning of Code Section 280G(b)(2) of the Code (including by reason of Code Section 280G(b)(4)(A) of the Code) 280G(b)(4)(A)) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B) of the Code, 280G(b)(4)(B), in excess of the Base Amount "base amount" (as defined in Code Section 280G(b)(3) of the Code) 280G(b)(3)) allocable to such reasonable compensation, compensation; and (iii) (c) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Code Sections 280G(d)(3) and (4) of the Code. (4). View More