Common use of Imposition of Payment Cap Clause in Contracts

Imposition of Payment Cap. In the event that any amount or benefit paid or distributed to the Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to the Executive by the Company or any Affiliate, whether pursuant to any Plan or otherwise (the “Covered Payments”), (i) would be an “excess parachute payment” as defined in Section 280G of the Code (the “Parachute Payments”), which would 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), and (ii) the net after-tax benefit to the Executive would be greater (taking into account all applicable income, excise and employment taxes, whether imposed at the federal, state or local level) were the amount of the Covered Payments reduced to the maximum amount of payments that could be paid without the Executive being subject to the Excise Tax (the “Safe Harbor Amount”), then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the extent necessary such that the Covered Payments do not exceed the Safe Harbor Amount (such reduced payments to be referred to as the “Payment Cap”). In the event that the Executive receives reduced payments and benefits under this subsection, such payments and benefits shall be reduced in connection with the application of the Payment Cap in the following manner: first the Executive’s severance benefits payable under Section 5.1(a)(v) shall be reduced, followed by, to the extent necessary and in order, the enhanced benefits payable under Section 5.1(a)(iii), any life insurance opt out income payable under Section 5.1(a)(vi), the continuation of benefits provided under Section 5.1(b), the Pro-rata Annual Bonus or Pro-rata Periodic Bonus payable under Section 5.1(a)(ii), the stock incentive awards payable under Section 5.1(a)(v), and finally the Accrued Obligations.

Imposition of Payment Cap. In the event that any amount or benefit paid or distributed to the Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to the Executive by the Company or any Affiliate, whether pursuant to any Plan or otherwise (the “Covered Payments”), (i) would be an “excess parachute payment” as defined in Section 280G of the Code (the “Parachute Payments”), which would 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), and (ii) the net after-tax benefit to the Executive would be greater (taking into account all applicable income, excise and employment taxes, whether imposed at the federal, state or local level) were the amount of the Covered Payments reduced to the maximum amount of payments that could be paid without the Executive being subject to the Excise Tax (the “Safe Harbor Amount”), then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the extent necessary such that the Covered Payments do not exceed the Safe Harbor Amount (such reduced payments to be referred to as the “Payment Cap”). In the event that the Executive receives reduced payments and benefits under this subsection, such payments and benefits shall be reduced in connection with the application of the Payment Cap in the following manner: first the Executive’s severance benefits payable under Section 5.1(a)(v) shall be reduced, followed by, to the extent necessary and in order, the enhanced benefits payable under Section 5.1(a)(iii5.1(a)(iv), any life insurance opt out income payable under Section 5.1(a)(vi5.1(a)(vii), the continuation of benefits provided under Section 5.1(b), the Pro-rata Annual Bonus or Pro-rata Periodic Bonus payable under Section 5.1(a)(ii), the Pro-rata LTIP Bonus payable under Section 5.1(a)(iii), the stock incentive awards payable under Section 5.1(a)(v), 5.1(a)(vi) and finally the Accrued Obligations.

Imposition of Payment Cap. In If (x) the event that any amount aggregate value of all ------------------------- - compensation payments or benefit benefits to be paid or distributed provided to the Executive pursuant to Employee under this AgreementAgreement and any other plan, taken together agreement or arrangement with any amounts or benefits otherwise the Company exceeds the amount which can be paid or distributed to the Executive by Employee without the Company or any Affiliate, whether pursuant to any Plan or otherwise Employee incurring an Excise Tax and (the “Covered Payments”), (i) would be an “excess parachute payment” as defined in Section 280G of the Code (the “Parachute Payments”), which would 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), and (iiy) the Employee would receive a greater - net after-tax benefit to the Executive would be greater amount (taking into account all applicable incometaxes payable by the Employee, excise and employment taxes, whether imposed at including any Excise Tax) by applying the federal, state or local level) were the amount of the Covered Payments reduced to the maximum amount of payments that could be paid without the Executive being subject to the Excise Tax (the “Safe Harbor Amount”limitation contained in this Section 3(e)(iii), then the amounts payable to the Executive Employee under this Agreement Section 3 shall be reduced (but not below zero) to the extent necessary maximum amount which may be paid hereunder without the Employee becoming subject to such that the Covered Payments do not exceed the Safe Harbor Amount an Excise Tax (such reduced payments to be referred to as the “"Payment Cap”"). In the event that the Executive Employee receives reduced payments and benefits under this subsectionhereunder, such Employee shall have the right to designate which of the payments and benefits shall be reduced otherwise provided for in this Agreement that he will receive in connection with the application of the Payment Cap Cap. In addition, the Employee may elect, by written notice to the Company delivered not later than the Change of Control Date, that, in lieu of limiting the following manner: first the Executive’s severance benefits payable under Section 5.1(a)(v) shall be reducedhereunder (or, followed by, if required to avoid an Excise Tax without regard to the extent necessary and in order, the enhanced benefits payable under Section 5.1(a)(iii), any life insurance opt out income payable under Section 5.1(a)(vipayments made hereunder), the continuation "Requisite Portion" (as defined below) of benefits provided under Section 5.1(b), the Pro-rata Annual Bonus or Pro-rata Periodic Bonus payable under Section 5.1(a)(ii), the stock incentive awards payable under Section 5.1(a)(voptions held by the Employee which are not then exercisable shall not become exercisable by reason of the Change of Control, but rather shall become exercisable in accordance with their original terms. The Requisite Portion shall mean the portion of all such stock options pertaining to the least number of shares necessary to avoid the imposition of an Excise Tax (taking into account the potential payment of severance benefits hereunder); it being understood that the portion of the options which would become exercisable at the last date after the Change of Control shall be first taken into account to satisfy this requirement, and finally with such other portions of other options, in reverse order of exercise date, applied thereunder until a sufficient number of options have not been accelerated to avoid the Accrued Obligationsimposition of an Excise Tax.

Imposition of Payment Cap. In If (A) the event that any amount or benefit aggregate value of the Severance Benefits, Accrued Obligations, continuation of benefits and other amounts to be paid or distributed provided to the Executive pursuant to under this AgreementAgreement and any other plan, taken together agreement or arrangement with any amounts or benefits otherwise paid or distributed to the Executive by the Company or any Affiliate(collectively, whether pursuant to any Plan or otherwise (the “Covered Payments”), (i) would exceeds the amount which can be an “excess parachute payment” as defined in Section 280G of the Code (the “Parachute Payments”), which would subject paid to the Executive to without the tax Executive incurring an Excise Tax and (the “Excise Tax”) imposed under Section 4999 of the Code (or any similar tax that may hereafter be imposed), and (iiB) the net Executive would receive a greater net-after-tax benefit to the Executive would be greater amount (taking into account all applicable incometaxes payable by the Executive, excise and employment taxes, whether imposed at including any Excise Tax) by applying the federal, state or local level) were the amount of the Covered Payments reduced to the maximum amount of payments that could be paid without the Executive being subject to the Excise Tax (the “Safe Harbor Amount”limitation contained in this Section 2.6(b)(i), then the such amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the extent necessary maximum amount which may be paid hereunder without the Executive becoming subject to such that the Covered Payments do not exceed the Safe Harbor Amount an Excise Tax (such reduced payments to be referred to as the “Payment Cap”). In the event that the Executive receives reduced payments and benefits under this subsectionpursuant to the previous sentence, such payments and benefits the order in which they shall be reduced is the following: (i) cash payments for outplacement services under Section 2.2(e); (ii) cash payments under Section 2.2(a) that do not constitute deferred compensation within the meaning of Section 409A of the Code; (iii) cash payments under Section 2.2(d); and (iv) cash payments under Section 2.2(a) that do constitute deferred compensation, in connection each case, beginning with the application payment or benefits that are to be paid or provided the farthest in time from the Effective Date of the Payment Cap Termination; in the following manner: first the Executive’s severance benefits payable under Section 5.1(a)(v) shall be reduced, followed by, each case only to the extent necessary and in order, that such reduction would eliminate or reduce the enhanced benefits payable under Section 5.1(a)(iii), any life insurance opt out income payable under Section 5.1(a)(vi), the continuation of benefits provided under Section 5.1(b), the Pro-rata Annual Bonus or Pro-rata Periodic Bonus payable under Section 5.1(a)(ii), the stock incentive awards payable under Section 5.1(a)(v), and finally the Accrued ObligationsExcise Tax.