Certain Payments by the Company. A. In the event that any amount or benefit paid or distributed to the Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to the Executive by the Company or any affiliated company (collectively, the "Covered Payments"), are or become subject to the tax (the "Excise Tax") imposed under Section 4999 of the Code, or any similar tax that may hereafter be imposed, the Company shall pay to the Executive at the time specified in Section V.B. below an additional amount (the "Tax Reimbursement Payment") such that the net amount retained by the Executive with respect to such Covered Payments, after deduction of any Excise Tax on the Covered Payments and any Federal, state and local income or employment tax and Excise Tax on the Tax Reimbursement Payment provided for by this Section V, but before deduction for any Federal, state or local income or employment tax withholding on such Covered Payments, shall be equal to the amount of the Covered Payments.
B. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Covered Payments will be treated as "parachute payments" to the extent they exceed the "2.99 base amount threshold" within the meaning of Section 280G of the Code, and all "parachute payments" in excess of the "base amount" (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of the Company's independent certified public accountants appointed prior to the date of the change in ownership or control or tax counsel selected by such accountants (the "Accountants"), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute "parachute payments" or are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code.
C. For purposes of determining the amount of the Tax Reimbursement Payment, the Executive shall be deemed to pay:
1. Federal income taxes at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Tax Reimbursement Payment is to be made, and
2. any applicable state and local income or other employment taxes at the highest applica...
Certain Payments by the Company. 11.1 In the event that the Executive is deemed to have received an “excess parachute payment” (as defined in Section 280G(b) of the Code) which is subject to the excise taxes (the “Excise Taxes”) imposed by Section 4999 of the Code in respect of any payment pursuant to this Agreement or any other agreement, plan, instrument or obligation, in whatever form, the Company shall make the Bonus Payment (defined below) to the Executive notwithstanding any contrary provision in this Agreement or any other agreement, plan, instrument or obligation.
Certain Payments by the Company. Executive is entitled to receive certain cash payments intended to gross-up Executive for certain taxes, under the circumstances set forth in, and subject to the terms and conditions of, Appendix I hereto.
Certain Payments by the Company. In the event that the Excise Tax is later determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Tax Reimbursement Payment is made (including, but not limited to, by reason of any payment the existence or amount of which cannot be determined at the time of the Tax Reimbursement Payment), the Company shall make an additional Tax Reimbursement Payment in respect of such excess (plus any interest or penalty payable with respect to such excess) not later than the end of Executive’s taxable year following Executive’s taxable year in which the taxes that are subject to the audit or litigation are remitted to any Federal, state or local tax authority, or where as a result of such audit or litigation there are taxes remitted, the end of the Executive’s taxable year following the Executive’s taxable year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation, in accordance Treasury Regulation Section 1.409A-3(i)(1)(v).
Certain Payments by the Company. In the event that you are deemed to have received an “excess parachute payment” (as defined in Section 280G(b) of the Code) which is subject to the excise taxes (the “Excise Taxes”) imposed by Section 4999 of the Code in respect of any payment pursuant to this Agreement or any other agreement, plan, instrument or obligation of the Company or any of its affiliates, in whatever form, the Company shall make the Bonus Payment (defined below) to you notwithstanding any contrary provision in this Agreement or any other agreement, plan, instrument or obligation.
Certain Payments by the Company. (1) If (A) the Company fails to file the Registration Statement with the SEC on or before January 29, 1999 or (B) the Registration Statement is not declared effective by the SEC on or before March 30, 1999, the Company shall pay the Initial Investor an amount in cash equal to 2.0% of the Purchase Price on the first Computation Date to occur and 3.0% of the Purchase Price on each subsequent Computation Date (such amounts to be pro rated for periods less than 30 days).
(2) If the Registration Statement shall cease to be available for use by any Investor for the sale of any Registrable Securities for 15 or more days (whether or not consecutive) for any reason (including without limitation by reason of events described in Sections 3(f) and 3(g)), the Company shall pay such Investor an amount in cash equal to 0.2% of the Purchase Price for each day on which such unavailability occurs. Such payments shall be made in arrears every 30 days after such unavailability first occurs.
(3) Any overdue payments required by this Section 3(f) shall bear interest as provided in Section 6(o) of the Subscription Agreement. The payments required by this Section 3(f) shall be in addition to any other rights and remedies of the Investors under this Agreement, the Subscription Agreement and applicable law.
Certain Payments by the Company. (a) Notwithstanding any other provision of any other plan, arrangement or agreement to the contrary, including, without limitation, the Plan, subject only to Section 4(b)(i) below, if it shall be determined that any Payment (as defined below) will be subject to the Excise Tax (as defined below), then you shall be entitled to receive an additional cash payment (the “Gross-Up Payment”) equal to the sum of the Excise Tax payable by you plus an amount such that, after payment by you of all taxes (and any interest or penalties imposed with respect to such taxes), including without limitation, any federal, state, local or foreign income or employment taxes (and any interest and penalties imposed with respect thereto) on the Gross-Up Payment and the Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed on the Payment itself, you retain an amount of the Gross-Up Payment such that you are in the same after-tax position as if the Excise Tax had not been imposed.
Certain Payments by the Company. (a) Notwithstanding anything to the contrary in this Agreement, in the event that any payment, grant of securities or distribution by Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 11) ("Payment") is determined to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (the "Code") (or any similar provision) and/or any taxes incurred in connection with delivering documents contemplated by Section 11(e) (such excise and other tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise and Other Tax"), then the Company shall
Certain Payments by the Company. (a) If any payment made to Executive pursuant to this Agreement or otherwise would constitute an excess parachute payment within the meaning of Section 280(G) of the Code, Executive shall forfeit (to the extent necessary to avoid such excess parachute payment)
(i) first, cash receivable hereunder under Sections 6(a)(i) and 6(a)(v), (ii) next, shares of Common Stock of the Company received under that certain Stock Purchase Agreement dated as of March 15, 1996, between Executive, certain other individuals, Talbxxx Xxxical Management Corporation and FHP International Corporation, as amended (the "Purchase Agreement") that are subject to restrictions under paragraphs 5.3.(c) thereof and that are not yet free of restrictions on the sale thereof that are applicable until July 1, 1998, and (iii) lastly, shares of Common Stock of the Company received under the Purchase Agreement that are not yet free of restrictions on the sale thereof that are applicable until July 1, 1999; provided, however, that none of the foregoing forfeitures shall take place if Executive, within 30 days after the Date of Termination shall have executed and delivered to the Company (i) a Covenant Not to Compete in substantially the form of "EXHIBIT A" hereto (as amended to provide that such Covenant Not to Compete shall terminate on September 18, 1999 and the references to Section 11(c) are revised to Section 11(a)), and (ii) a Settlement and Release Agreement in substantially the form of "EXHIBIT B" hereto.
Certain Payments by the Company. Section 5 of the Agreement is hereby amended and restated in its entirety to read as follows:
