Limitation on Certain Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined in 9(e) below) shall determine that receipt of all Payments (as defined in 9(e) below) would subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined in 9(e) below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined in 9(e) below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined in 9(e) below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt (as defined in 9(e) below) of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.
(b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 shall be binding upon the Company and the Executive and shall be made as soon as reasonably practicable and in no event later than fifteen (15) days following the Date of Termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Agreement Payments shall be reduced by reducing the payments and benefits under the following sections in the following order: (i) first, any Payments under Section 6(b)(i); (ii) second, any other cash Payments that would be made upon a termination of the Executive’s employment, beginning with payments that would be made last in time; (iii) third, all rights to payments, vesting or benefits in connection with any options to purchase Common Stock; (iv) fourth, all rights to payments, vesting or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting or benefits in connection with any options to purchase Common Stock th...
Limitation on Certain Payments. Notwithstanding anything contained herein, if any of the Payments provided for in this Agreement, together with any other payments of Compensation which the Executive receives from the Company, would constitute a "Parachute Payment" (as defined in Section 280G(b)(2) of the Code), the Payments pursuant to this Agreement shall be reduced to the largest amounts as will result in no portion of such Payments being subject to the excise tax imposed in Section 4999 of the Code; provided however, that the Executive and the Company shall mutually agree to the amount of such Payments as otherwise would be paid but for the foregoing limitation of this Section 6, in equal installments such that the present value (applicable present value discount rate shall be in accordance with Section 280G(d)(4) of the Code) of such installments will result in no portion of such Payments to be treated as Parachute Payments under the Code. The first such installment shall be payable when such amount would otherwise have been payable; provided further, however, that the Executive and the Company shall mutually agree to the allocation of any reductions required by this Section 6.
Limitation on Certain Payments. Notwithstanding anything herein to the contrary, in the event that the Executive shall become entitled to payments pursuant to Section 9(d)(ii) hereof ("Change of Control Payments"), if the value of the Change of Control Payments plus any other amount that is paid or distributed or distributable to the Executive would constitute an excess parachute payment under Section 280G of the Code, the amount payable or distributable to or for the benefit of the Executive hereunder shall be reduced to the Alternate Payment. The "Alternate Payment" shall be an amount expressed in present value which maximizes the aggregate present value of the amounts payable or distributable to the Executive hereunder without causing any such amounts to be nondeductible by the Company pursuant to Section 280G of the Code. The value of the Change of Control Payments shall be determined in accordance with temporary or final regulations, if any, promulgated under Section 280G of the Code and based upon the advice of counsel selected by the Company's independent auditors. The value of any noncash benefit or any deferred payment or benefit shall be determined in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
Limitation on Certain Payments. The Company will not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Company's capital stock (which includes common and preferred stock) (other than (a) dividends or distributions in shares of, or options, warrants or rights to subscribe for or purchase shares of, Common Stock of the Company, (b) any declaration of a dividend in connection with the implementation of a shareholder's rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (c) as a result of a reclassification of the Company's capital stock or the exchange or the conversion of one class or series of the Company's capital stock for another class or series of the Company's capital stock, (d) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, and (e) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers, employees or consultants or any of the Company's dividend reinvestment plans), (ii) make any payment of principal, premium, if any, or interest on or repay or repurchase or redeem any debt securities of the Company that in the right of payment rank pari passu with or junior to the Securities or (iii) make any guarantee payments with respect to any guarantee by the Company (other than payments under the Preferred Securities Guarantee) of the debt securities of any Subsidiary of the Company if in the right of payment such guarantee ranks pari passu with or junior to the Securities if at such time (1) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice or the lapse of time, or both, would constitute an Event of Default and (b) in respect of which the Company shall not have taken reasonable steps to cure, (2) an Event of Default hereunder shall have occurred and be continuing, (3) if such Securities are held by the Property Trustee, the Company shall be in default with respect to its payment obligations under the Preferred Securities Guarantee or (4) the Company shall have given notice of its election of the exercise of its right to extend the interest payment period pursuant to Section 2.13(a) and any such extension shall be conti...
Limitation on Certain Payments. Make (a) any payment of dividends, stock repurchases or redemptions or other distributions to shareholders of the Borrower, (b) any payment of principal of or interest on any subordinated debt (other than regularly scheduled principal and interest on subordinated debt, in each case, subject to the subordination provisions thereof), or (c) any prepayment, early redemption, repurchase prior to maturity or other acquisition or defeasance of any other Indebtedness (other than a prepayment, redemption or repurchase arising in connection with (i) the refinancing of such Indebtedness and (ii) a conversion of such Indebtedness to equity securities) if, in any such case, the pro forma Leverage Ratio after giving effect to the relevant payment or other transaction described above would be greater than (i) if the Borrower’s Debt Rating issued by S&P is BBB- or higher, 3.0 to 1.00; or (ii) otherwise 2.50 to 1.00.
Limitation on Certain Payments. Make (a) any payment of dividends, stock repurchases or redemptions or other distributions to shareholders of the Borrower, (b) any payment of principal of or interest on any subordinated debt (other than Indebtedness permitted pursuant to Section 7.2(k)), or (c) any prepayment, early redemption, repurchase prior to maturity or other acquisition or defeasance of any other Indebtedness (other than a prepayment, redemption or repurchase arising in connection with (i) the refinancing of such Indebtedness permitted pursuant to Section 7.2(g) and (ii) a conversion of such Indebtedness to equity securities) if, in any such case, the pro forma Leverage Ratio after giving effect to the relevant payment or other transaction described above would be greater than (i) if the Borrower’s Debt Rating is BBB- (or the equivalent) or higher, 3.0 to 1.00; or (ii) otherwise 2.50 to 1.00.
Limitation on Certain Payments. Make any payment of dividends, stock repurchases or redemptions or other distributions to shareholders of the Borrower (other than a payment made in common stock of the Borrower) or permit any Subsidiary to purchase stock of the Borrower, if, in any such case, the pro forma Leverage Ratio after giving effect to the relevant payment or other transaction described above would be greater than (i) if the Borrower’s Debt Rating issued by S&P or Fitch is BBB- or higher, 3.00 to 1.00; or (ii) otherwise, 2.50 to 1.00.
Limitation on Certain Payments. Notwithstanding the provisions of Sections 5(d) or 5(e), in the event of a Change of Control, the Executive’s right to receive the lump sum cash payment following a termination of employment pursuant to Section 5(d)(i)(B), 5(d)(i)(C), 5(e)(i)(B) or 5(e)(i)(C) shall terminate on March 15th of the calendar year following the calendar year in which the Window Period commenced, and no such amount shall be payable thereafter. Subject to the preceding sentence, if a Change of Control occurs during the Employment Period, then (regardless of when the Employment Period would otherwise end under any other provision of this Agreement) Section 5(e), and all other parts of this Agreement which relate to Section 5(e), shall continue to apply to the Executive for 18 months after the Change of Control.”
20. A new Section 5(g) shall be added to the Agreement to read as follows:
Limitation on Certain Payments. 11 5.10 Limitation on Liens.......................................12 5.11 Compensation..............................................12
Limitation on Certain Payments. RSL COM shall not, and shall not permit the Borrower or any other of its Subsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its capital stock (except dividends or distributions payable to RSL COM), or (ii) make any payment on account of the purchase, redemption, defeasance retirement or acquisition of (x) any shares of any capital stock of RSL COM or any of its Subsidiaries, (y) any option, warrant or other right to acquire shares of any capital stock of RSL COM or any of its Subsidiaries, or (z) any debt of RSL COM or any of its Subsidiaries that is subordinated to the Loans, other than (A) dividends or distributions made by RSL COM in kind on a cashless basis with respect to RSL COM Series A preferred shares or other series of preferred shares issued by RSL COM after the date hereof or (B) distributions of RSL COM Class A shares or cash pursuant to roll-up or similar agreements between RSL COM, its Subsidiaries and other shareholders of such Subsidiaries that do not individually or in the aggregate exceed 5% of the value of the capital stock of such Subsidiary.
