scale percentages of the target bonus set forth in the Adjusted EBITDA Performance Table based upon Adjusted EBITDA being more than the threshold Adjusted EBITDA but less than the target Adjusted EBITDA, or more than the target Adjusted EBITDA but less than the maximum Adjusted EBITDA; provided, however, notwithstanding anything to the contrary contained in this Agreement, the Adjusted EBITDA Performance Bonus for any such year will be zero if the Adjusted EBITDA achieved by the Company for such year is less than the threshold Adjusted EBITDA for such year, and in no event will an Adjusted EBITDA Performance Bonus for any such year be more than the maximum target bonus for such year even if the Adjusted EBITDA achieved by the Company for such year exceeds the maximum Adjusted EBITDA for such year.
The Company shall pay in each of the immediate following years to the Executive the Adjusted EBITDA Performance Bonus earned by the Executive for such preceding year within ten (10) days of the Company filing its Annual Report on Form10-K for such preceding year with the Securities and Exchange Commission (or sooner to the extent necessary to satisfy any requirements of 409A); provided, however, if the date established by the Internal Revenue Service (the “IRS Payment Date”) by which such payment must be made in order for the Company to deduct the amount of the Adjusted EBITDA Performance Bonus for such year is earlier, the Company shall pay, (A) if the Company can determine such amount by the IRS Payment Date, such amount prior to the IRS Payment date or (B) if the Company cannot determine such amount by the IRS Payment Date, 90% of the Company’s good faith estimate of such amount by the IRS Payment Date and the balance, if any, as soon thereafter as the Company can determine such amount. If, however, 90% of the Company’s good faith estimate of such amount is more than the Adjusted EBITDA Performance Bonus for such year, the Executive shall promptly return such excess to the Company as soon as the Company shall notify the Executive of the amount of such excess.
The bonuses payable by the Company to the Executive pursuant to this clause (i) shall be awarded under and subject to the terms of the Company’s 2000 Incentive Bonus Compensation Plan or any successor thereto (the “Plan”); provided, however, if the Company shall determine that such bonuses would not qualify under the terms of the Plan, the Company shall use its best efforts to amend the Plan so that such bonuses would qualify under the terms of the Plan; provided further, however, if the Company is unable to so amend the Plan, the Company shall enter into another financial arrangement with the Executive to provide the Executive with the same economic benefit, on anafter-tax basis, as the Executive would have received if such bonuses had qualified under the terms of the Plan.
For purposes of this Agreement, the term “Adjusted EBITDA”, as it applies to any particular year, means that amount for such year equal to the Company’s Earnings before Interest, Taxes, Depreciation, and Amortization, as determined by the Company and derived from the Company’s audited financial statements, subject to such modifications as are set forth in the Annual Adjusted EBITDA Performance Bonus Table for such year.
If the Executive’s employment is terminated prior to December 1 of any year (A) by the Company for any reason other than Cause, (B) by the Executive for Good Reason, (C) by the Company or the Executive due to the Executive’s Total Disability, or (D) by reason of the Executive’s death, any Annual Adjusted EBITDA Performance Bonus payable to the Executive or his estate, as the case may be, accrued to the date of termination of the Executive’s employment shall be that amount equal to (1) the amount of the Annual Adjusted EBITDA
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