Common use of Limits on Payments Clause in Contracts

Limits on Payments. Executive and Employers intend for all payments under this Agreement to be either outside the scope of Code Section 409A or to comply with its requirements as to timing of payments. Accordingly, to the extent applicable, it is the general intention of the parties that this Agreement shall, to the extent practicable, be operated in accordance with the requirements of Code Section 409A, as amended, and the regulations and rulings thereunder, including any applicable transition rules. Without in any way limiting the foregoing, (i) in the event that Code Section 409A requires that any special terms, provision or conditions be included in this Agreement, then such terms, provisions, and conditions shall, to the extent practicable, be deemed to be made part of this Agreement, and (ii) terms used in this Agreement shall be construed in accordance with Code Section 409A if and to the extent required. Employers shall have authority to take action, or refrain from taking any action, with respect to the payments and benefits under this Agreement that is reasonably necessary to comply with Code Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Code Section 409A shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Code Section 409A, each payment of compensation under this Agreement shall be treated as a separate payment of compensation for purposes of applying Code Section 409A. Notwithstanding anything in this Agreement to the contrary, if any amounts or benefits payable under this Agreement in the event of Executive’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Code Section 409A, payment of such amounts and benefits shall commence when Executive incurs a “separation from service” within the meaning of Treasury Regulation 1.409A-1(h), without regard to any of the optional provisions thereunder, from Employers and any entity that would be considered a single employer with Employers under Code Section 414(b) or 414(c) (as modified by the rules under Code Section 409A) (“Separation from Service”). Such payments or benefits shall be provided in accordance with the timing provisions of this Agreement by substituting the Agreement’s references to “termination of employment” or “termination” with Separation from Service. In addition, if at the time of Executive’s Separation from Service Executive is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i), any amount or benefits that constitute “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Executive on account of Executive’s Separation from Service shall not be paid until after the earlier of (i) the first (1st) business day of the seventh (7th) month following Executive’s Separation from Service, or (ii) the date of Executive’s death (the “409A Suspension Period”) to the extent required to comply with Code Section 409A. Within fourteen (14) calendar days after the end of the 409A Suspension Period, Executive shall be paid a cash lump sum payment equal to any payments (including interest on any such payments, at an interest rate of not less than the prime interest rate, as published in the Wall Street Journal, over the period such payment is restricted from being paid to Executive) and benefits that the Company would otherwise have been required to provide under this Agreement but for the imposition of the 409A Suspension Period delayed because of the preceding sentence. Thereafter, Executive shall receive any remaining payments and benefits due under this Agreement in accordance with the terms of this Agreement paragraph 7(e) (as if there had not been any 409A Suspension Period beforehand). To the extent not otherwise specified in this Agreement, all (A) reimbursements and (B) in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Code Section 409A, including, where applicable, the requirement that (1) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement); (2) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year; (3) the reimbursement of an eligible expense shall be made no later than the last day of the calendar year following the year in which the expense is incurred; and (4) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. In the event that this Agreement shall be deemed not to be exempt from or to comply with Code Section 409A, then neither Employers, the Boards, the Committee nor its or their designees or agents shall be liable to Executive or other persons for actions, decisions or determinations made in good faith. If any of the payments or benefits received or to be received by Executive (including, without limitation, any payment or benefits received in connection with a Change of Control or Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Code Section 280G and would, but for this subparagraph (e), be subject to the excise tax imposed under Code Section 4999 (the “Excise Tax”), then prior to making the 280G Payments, a calculation shall be made comparing (i) the net benefit to Executive of the 280G Payments after payment of the Excise Tax to (ii) the net benefit to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above shall the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. Any reduction made pursuant to this subparagraph (e) shall be made in a manner determined by the Accounting Firm (as defined below) that maximizes Executive’s economic position and is consistent with the requirements of Code Section 409A. All calculations and determinations under this subparagraph (e) shall be made by Employers’ regular independent accounting firm at the expense of Employers or, at the election and expense of Executive, another nationally recognized independent accounting firm (the “Accounting Firm”) acceptable to Employers. Employers shall instruct the Accounting Firm to make all such calculations and determinations in a manner that is in the best interests of Executive and maximizes Executive’s position. For purposes of making the calculations and determinations required by this subparagraph (e), the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning the application of Code Section 280G and Code Section 4999. Employers and Executive shall furnish the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make its calculations and determinations under this subparagraph (e). All calculations and determinations by the Accounting Firm shall be binding upon Employers and Executive. If any payments or benefits are reduced under this Agreement pursuant to this subparagraph (e), Executive shall pay all such assessed excise taxes, and any income taxes and additional excise taxes resulting solely from the payment of such excise taxes.

Limits on Payments. Executive and the Employers intend for all payments under this Agreement to be either outside the scope of Code Section 409A of the Code or to comply with its requirements as to timing of payments. Accordingly, to the extent applicable, it is the general intention of the parties that this Agreement shall, to the extent practicable, shall at all times be operated in accordance with the requirements of Code Section 409A409A of the Code, as amended, and the regulations and rulings thereunder, including any applicable transition rules. Without in any way limiting the foregoing, (i) in the event that Code Section 409A requires that any special terms, provision or conditions be included in this Agreement, then such terms, provisions, and conditions shall, to the extent practicable, be deemed to be made part of this Agreement, and (ii) terms used in this Agreement shall be construed in accordance with Code Section 409A if and to the extent required. The Employers shall have authority to take action, or refrain from taking any action, with respect to the payments and benefits under this Agreement that is reasonably necessary to comply with Code Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Code Section 409A of the Code shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Code Section 409A409A of the Code, each payment of compensation under this Agreement shall be treated as a separate payment of compensation for purposes of applying the Section 409A of the Code deferral election rules and the exclusion under Section 409A. 409A of the Code for certain short-term deferral amounts. Notwithstanding anything in this Agreement to the contrary, if any amounts or benefits payable under this Agreement in the event of Executive’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Code Section 409A, payment of such amounts and benefits shall commence when the Executive incurs a “separation from service” within the meaning of Treasury Regulation 1.409A-1(h), without regard to any of the optional provisions thereunder, from the Employers and any entity that would be considered a single employer with the Employers under Code Section 414(b) or 414(c) (as modified by the rules under Code Section 409A) (“Separation from Service”). Such payments or benefits shall be provided in accordance with the timing provisions of this Agreement by substituting the Agreement’s references to “termination of employment” or “termination” with Separation from Service. In addition, if at the time of Executive’s Separation from Service the Executive is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i), any amount or benefits that constitute the constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Executive on account of the Executive’s Separation from Service shall will not be paid until after the earlier of (i) the first (1st) business day of the seventh (7th) month following Executive’s Separation from Service, or (ii) the date of the Executive’s death (the “409A Suspension Period”) to the extent required to comply with Code Section 409A. ). Within fourteen (14) 14 calendar days after the end of the 409A Suspension Period, the Executive shall be paid a cash lump sum payment equal to any payments (including interest on any such payments, at an interest rate of not less than the prime interest rate, as published in the Wall Street Journal, over the period such payment is restricted from being paid to the Executive) and benefits that the Company would otherwise have been required to provide under this Agreement but for the imposition of the 409A Suspension Period delayed because of the preceding sentence. Thereafter, the Executive shall receive any remaining payments and benefits due under this Agreement in accordance with the terms of this Agreement paragraph 7(e) Section (as if there had not been any 409A Suspension Period beforehand). To the extent not otherwise specified in this Agreement, all (A) reimbursements and (B) in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Code Section 409A409A of the Code, including, where applicable, the requirement that (1) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement); (2) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year; (3) the reimbursement of an eligible expense shall will be made no later than the last day of the calendar year following the year in which the expense is incurred; and (4) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. In the event that Notwithstanding any provision of this Agreement shall be deemed not to be exempt from or to comply with Code Section 409Athe contrary, then neither Employers, the Boards, the Committee nor its or their designees or agents shall be liable to Executive or other persons for actions, decisions or determinations made in good faith. If if any of the payments or benefits received or to be received by Executive (including, without limitation, any payment or benefits received in connection with a Change of Control or Executive’s termination of employment, whether pursuant to the terms of under this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the would constitute an “280G Payments”) constitute “excess parachute paymentspayment” within the meaning of Code Section 280G and wouldof the Code, but for the payments or benefits provided to Executive under this subparagraph (e), Agreement will be reduced by reducing the amount of payments or benefits payable to Executive to the extent necessary so that no portion of Executive’s payments or benefits will be subject to the excise tax imposed under Code by Section 4999 (of the “Excise Tax”), then prior to making Code. Notwithstanding the 280G Paymentsforegoing, a calculation shall reduction will be made comparing (i) under the previous sentence only if, by reason of that reduction, Executive’s net after tax benefit exceeds the net after tax benefit to Executive of the 280G Payments after payment of the Excise Tax to (ii) the net benefit to Executive he or she would realize if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above shall the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. Any reduction made pursuant to this subparagraph (e) shall be made in a manner determined by the Accounting Firm (as defined below) that maximizes Executive’s economic position and is consistent with the requirements of Code Section 409A. All calculations and determinations under this subparagraph (e) shall be made by Employers’ regular independent accounting firm at the expense of Employers or, at the election and expense of Executive, another nationally recognized independent accounting firm (the “Accounting Firm”) acceptable to Employers. Employers shall instruct the Accounting Firm to make all such calculations and determinations in a manner that is in the best interests of Executive and maximizes Executive’s position. For purposes of making the calculations and determinations required by this subparagraph (e), the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning the application of Code Section 280G and Code Section 4999. Employers and Executive shall furnish the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make its calculations and determinations under this subparagraph (e). All calculations and determinations by the Accounting Firm shall be binding upon Employers and Executivewere not made. If any payments or benefits are reduced under this Agreement pursuant to this subparagraph (e)paragraph and Executive is assessed any excise tax under Code Section 4999 as a result of payments or benefits under this Agreement, the Executive shall pay all such assessed excise taxes, and any income taxes and additional excise taxes resulting solely from the payment of such excise taxes.

Limits on Payments. Executive and Employers intend for all payments under this Agreement to be either outside the scope of Code Section 409A or to comply with its requirements as to timing of payments. Accordingly, to the extent applicable, it is the general intention of the parties that this Agreement shall, to the extent practicable, be operated in accordance with the requirements of Code Section 409A, as amended, and the regulations and rulings thereunder, including any applicable transition rules. Without in any way limiting the foregoing, (i) in the event that Code Section 409A requires that any special terms, provision or conditions be included in this Agreement, then such terms, provisions, and conditions shall, to the extent practicable, be deemed to be made part of this Agreement, and (ii) terms used in this Agreement shall be construed in accordance with Code Section 409A if and to the extent required. Employers shall have authority to take action, or refrain from taking any action, with respect to the payments and benefits under this Agreement that is reasonably necessary to comply with Code Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Code Section 409A shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Code Section 409A, each payment of compensation under this Agreement shall be treated as a separate payment of compensation for purposes of applying Code Section 409A. Notwithstanding anything in this Agreement to the contrary, if any amounts or benefits payable under this Agreement in the event of Executive’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Code Section 409A, payment of such amounts and benefits shall commence when Executive incurs a “separation from service” within the meaning of Treasury Regulation 1.409A-1(h), without regard to any of the optional provisions thereunder, from Employers and any entity that would be considered a single employer with Employers under Code Section 414(b) or 414(c) (as modified by the rules under Code Section 409A) (“Separation from Service”). Such payments or benefits shall be provided in accordance with the timing provisions of this Agreement by substituting the Agreement’s references to “termination of employment” or “termination” with Separation from Service. In addition, if at the time of Executive’s Separation from Service Executive is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i), any amount or benefits that the constitute “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Executive on account of Executive’s Separation from Service shall not be paid until after the earlier of (i) the first (1st) business day of the seventh (7th) month following Executive’s Separation from Service, or (ii) the date of Executive’s death (the “409A Suspension Period”) to the extent required to comply with Code Section 409A. Within fourteen (14) calendar days after the end of the 409A Suspension Period, Executive shall be paid a cash lump sum payment equal to any payments (including interest on any such payments, at an interest rate of not less than the prime interest rate, as published in the Wall Street Journal, over the period such payment is restricted from being paid to Executive) and benefits that the Company would otherwise have been required to provide under this Agreement but for the imposition of the 409A Suspension Period delayed because of the preceding sentence. Thereafter, Executive shall receive any remaining payments and benefits due under this Agreement in accordance with the terms of this Agreement paragraph 7(e) (as if there had not been any 409A Suspension Period beforehand). To the extent not otherwise specified in this Agreement, all (A) reimbursements and (B) in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Code Section 409A, including, where applicable, the requirement that (1) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement); (2) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year; (3) the reimbursement of an eligible expense shall be made no later than the last day of the calendar year following the year in which the expense is incurred; and (4) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. In the event that this Agreement shall be deemed not to be exempt from or to comply with Code Section 409A, then neither Employers, the Boards, the Committee nor its or their designees or agents shall be liable to Executive or other persons for actions, decisions or determinations made in good faith. If any of the payments or benefits received or to be received by Executive (including, without limitation, any payment or benefits received in connection with a Change of Control or Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Code Section 280G and would, but for this subparagraph (e), be subject to the excise tax imposed under Code Section 4999 (the “Excise Tax”), then prior to making the 280G Payments, a calculation shall be made comparing (i) the net benefit to Executive of the 280G Payments after payment of the Excise Tax to (ii) the net benefit to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above shall the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. Any reduction made pursuant to this subparagraph (e) shall be made in a manner determined by the Accounting Firm (as defined below) that maximizes Executive’s economic position and is consistent with the requirements of Code Section 409A. All calculations and determinations under this subparagraph (e) shall be made by Employers’ regular independent accounting firm at the expense of Employers or, at the election and expense of Executive, another nationally recognized independent accounting firm (the “Accounting Firm”) acceptable to Employers. Employers shall instruct the Accounting Firm to make all such calculations and determinations in a manner that is in the best interests of Executive and maximizes Executive’s position. For purposes of making the calculations and determinations required by this subparagraph (e), the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning the application of Code Section 280G and Code Section 4999. Employers and Executive shall furnish the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make its calculations and determinations under this subparagraph (e). All calculations and determinations by the Accounting Firm shall be binding upon Employers and Executive. If any payments or benefits are reduced under this Agreement pursuant to this subparagraph (e), Executive shall pay all such assessed excise taxes, and any income taxes and additional excise taxes resulting solely from the payment of such excise taxes.