Common use of Cap on Payments Clause in Contracts

Cap on Payments. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount (the “Cap Reduction”), only if the imposition of the Cap Reduction would result in the Executive receiving a larger Payment (net of all taxes on such Payment) than if the Cap Reduction had not been imposed. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (1) Section 6(a)(i)(B), (2) Section 6(a)(i)(C), (3) Section 6(a)(i)(A)(5) and (4) Section 6(a)(ii). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amount payable under this Agreement would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 9(a). (b) All determinations required to be made under this Section 9 shall be made by Deloitte Tax, LLP, or such other certified public accounting firm as may be designated by the Executive (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive.

Cap on Payments. (a) Anything in Notwithstanding any other provision of this Agreement to the contrary notwithstanding and Agreement, except as set forth belowin Section 7(b), in the event it that Company undergoes a “Change in Ownership or Control” (as defined below), Company shall not be determined obligated to provide to Executive a portion of any “Contingent Compensation Payments” (as defined below) that any Payment Executive would otherwise be subject entitled to receive to the Excise Taxextent necessary to eliminate any “excess parachute payments” (as defined in Section 280G(b)(1) of the Internal Revenue Code of 1986, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount as amended (the “Cap ReductionCode”), only if the imposition of the Cap Reduction would result in the Executive receiving a larger Payment (net of all taxes on such Payment) than if the Cap Reduction had not been imposed. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (1) Section 6(a)(i)(B), (2) Section 6(a)(i)(C), (3) Section 6(a)(i)(A)(5) and (4) Section 6(a)(ii)for Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amount payable under this Agreement would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 9(a). (b) All determinations required to be made under this Section 9 shall be made by Deloitte Tax, LLP, or such other certified public accounting firm as may be designated by the Executive (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control7, the Executive Contingent Compensation Payments so eliminated shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder“Eliminated Payments” and the aggregate amount (determined in accordance with Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Amount.” (b) Notwithstanding the provisions of Section 7(a), no such reduction in Contingent Compensation Payments shall be made if (i) the Eliminated Amount (computed without regard to this sentence) exceeds (ii) 110% of the aggregate present value (determined in accordance with Proposed Treasury Regulation Section 1.280G-1, Q/A-31 and Q/A-32 or any successor provisions) of the amount of any additional taxes that would be incurred by Executive if the Eliminated Payments (determined without regard to this sentence) were paid to him (including, state and federal income taxes on the Eliminated Payments, the excise tax imposed by Section 4999 of the Code payable with respect to all of the Contingent Compensation Payments in excess of Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code), and any withholding taxes). All fees and expenses The override of such reduction in Contingent Compensation Payments pursuant to this Section 7(b) shall be referred to as a “Section 7(b) Override.” For purpose of this paragraph, if any federal or state income taxes would be attributable to the receipt of any Eliminated Payment, the amount of such taxes shall be computed by multiplying the amount of the Accounting Firm shall be borne solely Eliminated Payment by the Company. Any determination maximum combined federal and state income tax rate provided by law. (c) For purposes of this Section 7, the Accounting Firm following terms shall be binding upon have the Company and the Executive.following respective meanings:

Cap on Payments. Notwithstanding Section 4 hereof, unless this limitation is waived by the Company, the aggregate of all payments made in any fiscal year to Former Stockholders for the repurchase of Repurchased Shares (aother than payments made under Section 6 and payments made under Section 7) Anything shall not exceed (i) 15 percent of EBBA in this Agreement the immediately preceding fiscal year plus (ii) any amounts contributed to the contrary notwithstanding and except as set forth below, capital of the Company by new stockholders or by existing Stockholders expanding their equity interest in the event it Company in the immediately preceding fiscal year. If by reason of this limitation, funds available to make payments to Former Stockholders for Repurchased Shares are less than the aggregate amount of all such payments due with respect to any fiscal year, payments shall first be determined that any Payment would be subject made to cover interest on the Excise TaxFixed Amounts due with respect to Repurchased Excess Shares, then to cover the amounts payable under this Agreement shall be reduced so that Fixed Amounts due with respect to Repurchased Excess Shares, then to cover Contingent Installment Payments due with respect to Repurchased Excess Shares, then to cover interest on the Parachute Value of all PaymentsFixed Amounts due on Repurchased Shares other than Repurchased Excess Shares, then to cover Fixed Amounts due with respect to Repurchased Shares other than Repurchased Excess Shares and the remainder to cover Contingent Installment Payments due with respect to Repurchased Shares other than Repurchased Excess Shares. Payments made in the aggregate, equals the Safe Harbor Amount (the “Cap Reduction”), only if the imposition order of the Cap Reduction would result priority described in the Executive receiving a larger Payment (net of all taxes on such Payment) than if the Cap Reduction had not been imposed. The reduction of the amounts payable hereunder, if applicable, preceding sentence shall be made by reducing in direct chronological order with the oldest deferred amounts in any priority category being paid first. Interest will accrue at the Average Rate on any portion of any payment not paid when due, and shall be payable to each Former Stockholder on the next anniversary of such Former Stockholder's Prior Repurchase Date on which funds are available to make such payments and benefits under the following sections in the following order: (1) Section 6(a)(i)(B), (2) Section 6(a)(i)(C), (3) Section 6(a)(i)(A)(5) and (4) Section 6(a)(ii). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under accordance with this Agreement (and no other Payments) shall be reduced. If the reduction of the amount payable under this Agreement would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amountincluding, no amounts payable under the Agreement shall be reduced pursuant to without limitation, this Section 9(a5). (b) All determinations required to be made under this Section 9 shall be made by Deloitte Tax, LLP, or such other certified public accounting firm as may be designated by the Executive (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive.