Code Limitations. In the event that the aggregate of any amounts payable to or on behalf of Officer under this Agreement and under any other plan, agreement or policy of Company or any Affiliate of Company would otherwise result in the imposition of tax under Section 4999 of the Code due to an excess parachute payment, as determined by Company's independent auditors, then the amounts payable to or on behalf of Officer under this Agreement shall be reduced to the extent necessary (but not below zero) so that such aggregate amounts shall not be a parachute payment. For purposes of determining any limitation under this Section 3(C): (a) no portion of any benefit the receipt or enjoyment of which Officer shall have effectively waived in writing shall be taken into account, and (b) the value of any non-cash benefit or any deferred payment or benefit shall be determined by Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If Company's independent auditors determine that payment that would be a parachute payment has been made to Officer hereunder, then the excess of (a) the amount of such payment actually made hereunder over (b) the amount that could be paid hereunder without any amount payable hereunder being a parachute payment, shall constitute a loan by Company to Officer, payable to Company upon demand with interest at the rate provided in Section 1274(d)(2)(B) of the Code commencing as of the date or dates of payment by Company of such excess amount.
Code Limitations. Notwithstanding anything to the contrary in this ---------------- Agreement, if Employee is entitled to benefits hereunder following the occurrence of a Change in Control, in no event shall the present value of benefits payable under this Agreement, taken together with Employee's benefits under the Stock Option Plan and Restricted Stock Issuance Plan and other applicable sources, that, in the opinion of counsel (as identified in Section 3 of this Part Three), are considered "parachute payments" under Section 4999 of the Code, be reduced by the excise tax imposed by Section 4999 of the Code. In the event that such benefits so taken together would exceed the amount which is exempt from the excise tax imposed by Section 4999 of the Code, the Company shall pay to Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by Employee, after deduction for the amount of any excise tax under Section 4999 and any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax) on the present value of such benefits, and any federal, state and local income tax, excise tax and penalties and interest, if applicable, upon the additional payment provided for by this Section 1, shall be equal to the present value of such benefits. For purposes of determining the additional amount to be paid to Employee pursuant to this Section 1, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the additional payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of his residence on the date the additional payment is made, net of the maximum reduction in federal income taxes which could be obtained from deduction from such state and local taxes.
Code Limitations. Notwithstanding anything to the contrary in this Agreement, if you are entitled to benefits under this Agreement, the Restricted Stock Issuance Plan, or the Stock Option Plan following the occurrence of a change in control, as that term is defined in Code section 280G of the Code or any comparable state statute, with respect to the Company (a "Change in Control"), in no event shall the present value of benefits payable under this Agreement, taken together with your benefits under the Stock Option Plan and Restricted Stock Issuance Plan and other applicable sources (a "Payment"), that are ultimately determined to be "parachute payments" under Section 4999 of the Code, be reduced by the excise tax imposed by Section 4999 of the Code or any comparable state statute. In the event that such benefits so taken together would exceed the amount which is exempt from the excise tax imposed by Section 4999 of the Code, the Company shall pay to you an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction for the amount of any excise tax under Section 4999 and any interest charges or penalties in respect of the imposition of such excise tax (but not any Federal, state or local income tax) on the present value of such benefits, and any Federal, state and local income tax, excise tax and penalties and interest, if applicable, upon the additional payment provided for by this paragraph 2-1, shall be equal to the present value of such benefits.
Code Limitations. Anything contained in this Section 12 notwithstanding, the Issuer shall not be obligated to make any accelerated payment hereunder or transfer any assets to any holder of Notes in respect thereof which would not otherwise be permitted under section 4975 of the Code. To the extent that any holder of a Note shall be in any way prohibited or otherwise restricted pursuant to section 4975 of the Code or pursuant to any other applicable law from exercising the remedies provided in this Section 12 and in Section 22 in order to receive the full payment of its Note and all other amounts owing to it hereunder or under the Other Agreements, such holder shall immediately be entitled to cause the Company to purchase the Notes held by such holder pursuant to Section 8.8.
Code Limitations. Notwithstanding anything to the contrary in ---------------- this Employment Agreement, if the Executive is entitled to benefits hereunder following the occurrence of a Change in Control, in no event shall the present value of benefits payable under this Employment Agreement, taken together with the Executive's benefits under the Stock Plans, that, in the opinion of counsel (as identified in Section 6.3), are considered "parachute payments" under section 4999 of the Code, be reduced by the excise tax imposed by section 4999 of the Code. In the event that such benefits so taken together would exceed the amount which is exempt from the excise tax imposed by section 4999 of the Code, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after the deduction of any excise tax under Section 4999 and any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax) on the present value of such benefits, and any federal, state and local income tax, excise tax and penalties and interest, if applicable, upon the additional payment provided for by this Section 6.1, shall be equal to the present value of such benefits. For purposes of determining the additional amount to be paid to the Executive pursuant to this Section 6.1, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the additional payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of his residence on the date the additional payment is made, net of the maximum reduction in federal income taxes which could be obtained from deduction from such state and local taxes.
