Common use of Modification of Payments by the Company and its Affiliates Clause in Contracts

Modification of Payments by the Company and its Affiliates. (i) Application of Section 7(e). In the event that any amount or benefit paid or distributed to, or on behalf of, the Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to, or on behalf of, the Executive by the Company, its Affiliates and their successors, including any acquiror of the Company or its Affiliates (or any person or entity required to be aggregated with the Company or its Affiliates for purposes of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code")) under any other plan, agreement, or arrangement (collectively, the "Covered Payments"), would be an "excess parachute payment" as defined in Section 280G of the Code, and would thereby subject the Executive 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 (or cause to be paid) to the Executive at the time specified in Section 7(e)(iv) 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 (including foreign) income tax, payroll tax and Excise Tax on the Tax Reimbursement Payment provided for by this Section 7(e), but before deduction for any Federal, state or local (including foreign) income or employment tax withholding on such Covered Payments, shall be equal to the amount of the Covered Payments; provided that if the aggregate value of all Covered Payments exceeds the maximum amount which can be paid to the Executive without the Executive incurring an Excise Tax (the "Cap Amount") by less than 10% (ten per cent) of the Cap Amount, the amounts payable to the Executive under this Section 7 shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without the Executive becoming subject to such an Excise Tax as a result of all Covered Payments (such reduced payments to be referred to as the "Payment Cap"). In the event that Executive receives reduced payments and benefits hereunder, Executive shall have the right to designate which of the payments and benefits otherwise provided for in this Agreement that the Executive will receive in connection with the application of the Payment Cap.

Modification of Payments by the Company and its Affiliates. (i) Application of Section 7(e6(d). In the event that any amount or benefit paid or distributed to, or on behalf of, the Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to, or on behalf of, the Executive by the Company, its Affiliates and their successors, including any acquiror of the Company or its Affiliates (or any person or entity required to be aggregated with the Company or its Affiliates for purposes of Section Code section 280G of the Internal Revenue Code of 1986, as amended (the "Code")) under any other plan, agreement, or arrangement (collectively, the "“Covered Payments"”), would be an "“excess parachute payment" ” as defined in Section Code section 280G of the CodeG, and would thereby subject the Executive to the tax (the "“Excise Tax"”) imposed under Section Code section 4999 of the Code (or any similar tax that may hereafter be imposed), the Company shall pay (or cause to be paid) to the Executive at the time specified in Section 7(e)(iv6(d)(iv) 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 (including foreign) income tax, payroll tax and Excise Tax on the Tax Reimbursement Payment provided for by this Section 7(e6(d), but before deduction for any Federal, state or local (including foreign) income or employment tax withholding on such Covered Payments, shall be equal to the amount of the Covered Payments; provided that if the aggregate value of all Covered Payments exceeds the maximum amount which can be paid to the Executive without the Executive incurring an Excise Tax (the "“Cap Amount"”) by less than 10% (ten per cent) of the Cap Amount, the amounts payable to the Executive under this Section 7 6 shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without the Executive becoming subject to such an Excise Tax as a result of all Covered Payments (such reduced payments to be referred to as the "“Payment Cap"”). In the event that Executive receives reduced payments and benefits hereunder, Executive shall have the right to designate which of the payments and benefits otherwise provided for in this Agreement that the Executive will receive in connection with the application of the Payment Cap, but may not change the time of payment thereof.

Modification of Payments by the Company and its Affiliates. (i) Application of Section 7(e7(d). In the event that any amount or benefit paid or distributed to, or on behalf of, the Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to, or on behalf of, the Executive by the Company, its Affiliates and their successors, including any acquiror of the Company or its Affiliates (or any person or entity required to be aggregated with the Company or its Affiliates for purposes of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code")) under any other plan, agreement, or arrangement (collectively, the "Covered Payments"), would be an "excess parachute payment" as defined in Section 280G of the Code, and would thereby subject the Executive 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 (or cause to be paid) to the Executive at the time specified in Section 7(e)(iv) 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 (including foreign) income tax, payroll tax and Excise Tax on the Tax Reimbursement Payment provided for by this Section 7(e7(d), but before deduction for any Federal, state or local (including foreign) income or employment tax withholding on such Covered Payments, shall be equal to the amount of the Covered Payments; provided that if the aggregate value of all Covered Payments exceeds the maximum amount which can be paid to the Executive without the Executive incurring an Excise Tax (the "Cap Amount") by less than 10% (ten per cent) of the Cap Amount, the amounts payable to the Executive under this Section 7 shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without the Executive becoming subject to such an Excise Tax as a result of all Covered Payments (such reduced payments to be referred to as the "Payment Cap"). In the event that Executive receives reduced payments and benefits hereunder, Executive shall have the right to designate which of the payments and benefits otherwise provided for in this Agreement that the Executive will receive in connection with the application of the Payment Cap.

Modification of Payments by the Company and its Affiliates. (i) Application of Section 7(e). In the event that any amount or benefit paid or distributed to, or on behalf of, the Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to, or on behalf of, the Executive by the Company, its Affiliates and their successors, including any acquiror of the Company or its Affiliates (or any person or entity required to be aggregated with the Company or its Affiliates for purposes of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”)) under any other plan, agreement, or arrangement (collectively, the "“Covered Payments"”), would be an "“excess parachute payment" ” as defined in Section 280G of the Code, and would thereby subject the Executive 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 (or cause to be paid) to the Executive at the time specified in Section 7(e)(iv) 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 (including foreign) income tax, payroll tax and Excise Tax on the Tax Reimbursement Payment provided for by this Section 7(e), but before deduction for any Federal, state or local (including foreign) income or employment tax withholding on such Covered Payments, shall be equal to the amount of the Covered Payments; provided that if the aggregate value of all Covered Payments exceeds the maximum amount which can be paid to the Executive without the Executive incurring an Excise Tax (the "“Cap Amount"”) by less than 10% (ten per cent) of the Cap Amount, the amounts payable to the Executive under this Section 7 shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without the Executive becoming subject to such an Excise Tax as a result of all Covered Payments (such reduced payments to be referred to as the "“Payment Cap"”). In the event that Executive receives reduced payments and benefits hereunder, Executive shall have the right to designate which of the payments and benefits otherwise provided for in this Agreement that the Executive will receive in connection with the application of the Payment Cap, but may not change the time of payment thereof.

Modification of Payments by the Company and its Affiliates. (i) Application of Section 7(e). In the event that any amount or benefit paid or distributed to, or on behalf of, the Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to, or on behalf of, the Executive by the Company, its Affiliates and their successors, including any acquiror of the Company or its Affiliates (or any person or entity required to be aggregated with the Company or its Affiliates for purposes of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”)) under any other plan, agreement, or arrangement (collectively, the "“Covered Payments"”), would be an "“excess parachute payment" ” as defined in Section 280G of the Code, and would thereby subject the Executive 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 (or cause to be paid) to the Executive at the time specified in Section 7(e)(iv) 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 (including foreign) income tax, payroll tax and Excise Tax on the Tax Reimbursement Payment provided for by this Section 7(e), but before deduction for any Federal, state or local (including foreign) income or employment tax withholding on such Covered Payments, shall be equal to the amount of the Covered Payments; provided that if the aggregate value of all Covered Payments exceeds the maximum amount which can be paid to the Executive without the Executive incurring an Excise Tax (the "“Cap Amount"”) by less than 10% (ten per cent) of the Cap Amount, the amounts payable to the Executive under this Section 7 shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without the Executive becoming subject to such an Excise Tax as a result of all Covered Payments (such reduced payments to be referred to as the "“Payment Cap"”). In the event that Executive receives reduced payments and benefits hereunder, such reduction shall be effected in the following manner, in the following order of priority and only to the extent that the required reduction has not been fully affected by reductions in a prior category: (i) the exercisability of any options having an exercise price in excess of the fair market value of the underlying common stock shall not accelerate, if and only to the extent that such acceleration results in a parachute payment under Section 280G of the Code, with the application of this subclause (i) to be effective first to options having the longest remaining period to become exercisable; (ii) any benefits payable hereunder in cash immediately following Executive’s termination; (iii) the vesting of performance based incentive awards shall not accelerate, with the application of this subclause (iii) to be effective first to awards having the longest remaining period to become vested; (iv) the vesting of any time vesting incentive awards shall not accelerate, with the application of this subclause (iv) to be effective first to awards having the longest remaining period to become vested; and (v) pro-rated with respect to any other element of compensation that is treated as a parachute payment. Notwithstanding the foregoing, to the extent permitted under Section 409A of the Code without any adverse tax consequences to the Executive under such Section, Executive shall have the right to designate which of the payments and benefits otherwise provided for in this Agreement that the Executive will receive in connection with the application of the Payment Cap.