Common use of Parachute Payment Limitation Clause in Contracts

Parachute Payment Limitation. If any payment or benefit to Employee under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and if, after reduction for any applicable federal excise tax imposed by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Tax.

Parachute Payment Limitation. If Notwithstanding anything in this agreement to the contrary, if any payment severance pay or benefit to Employee benefits payable under this Agreement agreement (without the application of this Section 7), either alone or together with other payments, awards, benefits or distributions (or any acceleration of any payment, award, benefit or distribution) pursuant to any agreement, plan or arrangement with Xxxxxx or any of its affiliates (the "Total Payments"), would be considered constitute a "parachute payment" within the meaning of (as defined in Section 280(g)(b)(2) 280G of the U.S. Internal Revenue Code of 1986, as amended, and ifregulations thereunder (the "Code")), then [the following shall occur: (a) tax counsel selected by Xxxxxx'x independent auditors and acceptable to Executive shall compute the net present value to Executive of all the Total Payments after reduction for any applicable federal the excise tax taxes imposed by Code Section 4999 of and for any normal income taxes that would be imposed on Executive if such Total Payments constituted Executive's sole taxable income; and (b) said tax counsel shall next compute the maximum Total Payments that can be provided without any such Total Payments being characterized as "Excess Parachute Payments" (as defined in Code ("Excise Tax"Section 280G) and federal income tax imposed reduce the result by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employeeany normal income taxes that would be imposed on Executive if such reduced Total Payments constituted Executive's net proceeds resulting from sole taxable income. If the payment result derived in clause (a) above is greater than the result derived in clause (b) above by more than 10% of the Reduced Amount described below, after reduction for federal income taxesresult derived in clause (b) above, then Xxxxxx shall pay Executive the full amount payable and of the benefits provided under this Agreement Total Payments without reduction. If the result derived from clause (a) above is not greater than the result derived in clause (b) above by more than 10% of the result derived in clause (b) above, then Xxxxxx shall pay Executive the maximum Total Payments possible without any such Total Payments being characterized as Excess Parachute Payments. The determination of how such Total Payments will be reduced shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received made by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is Executive in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxgood faith after consultation with Xxxxxx.

Parachute Payment Limitation. If any payment or benefit to the Employee under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2280G9(b)(2) of the Code and if, after reduction for any applicable federal excise tax imposed by Section 4999 of the Code (the "Excise Tax") and federal income tax imposed by the Code, the Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of the Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by the Employee under this Agreement such that no amount paid to the Employee under this Agreement and any other agreement, contract contract, or understanding heretofore or hereafter entered into between the Employee and the Company (the "Other AgreementsAgreement") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to the Employee (including groups or classes or of participants or of beneficiaries of which the Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to the Employee shall be limited to the Reduced Amount, then the Employee shall have the right, in the Employee's sole discretion, to designate those payments or benefits under this Agreement, any other AgreementsOther Agreement, and/or Benefit Plankany benefits plan, that should be reduced or eliminated so as to avoid having the payment to the Employee under this Agreement be subject to the Excise Tax.

Parachute Payment Limitation. If Notwithstanding anything in this agreement to the contrary, if any payment severance pay or benefit to Employee benefits payable under this Agreement agreement (without the application of this Section 7), either alone or together with other payments, awards, benefits or distributions (or any acceleration of any payment, award, benefit or distribution) pursuant to any agreement, plan or arrangement with Xxxxxx or any of its affiliates (the “Total Payments”), would be considered constitute a "“parachute payment" within the meaning of ” (as defined in Section 280(g)(b)(2) 280G of the U.S. Internal Revenue Code of 1986, as amended, and ifregulations thereunder (the “Code”)), then the following shall occur: (a) tax counsel selected by Xxxxxx’x independent auditors and acceptable to Executive shall compute the net present value to Executive of all the Total Payments after reduction for any applicable federal the excise tax taxes imposed by Code Section 4999 of and for any normal income taxes that would be imposed on Executive if such Total Payments constituted Executive’s sole taxable income; and (b) said tax counsel shall next compute the maximum Total Payments that can be provided without any such Total Payments being characterized as “Excess Parachute Payments” (as defined in Code ("Excise Tax"Section 280G) and federal income tax imposed reduce the result by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employee's net proceeds resulting from any normal income taxes that would be imposed on Executive if such reduced Total Payments constituted Executive’s sole taxable income. If the payment result derived in clause (a) above is greater than the result derived in clause (b) above by more than 10% of the Reduced Amount described below, after reduction for federal income taxesresult derived in clause (b) above, then Xxxxxx shall pay Executive the full amount payable and of the benefits provided under this Agreement Total Payments without reduction. If the result derived from clause (a) above is not greater than the result derived in clause (b) above by more than 10% of the result derived in clause (b) above, then Xxxxxx shall pay Executive the maximum Total Payments possible without any such Total Payments being characterized as Excess Parachute Payments. The determination of how such Total Payments will be reduced shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received made by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is Executive in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxgood faith after consultation with Xxxxxx.

Parachute Payment Limitation. If any payment or benefit to the Employee under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2280G9(b)(2) of the Code and if, after reduction for any applicable federal excise tax imposed by Section 4999 of the Code (the "Excise Tax") and federal income tax imposed by the Code, the Employee's net proceeds of the amounts payable and the benefits provided under this This Agreement would be less than the amount of the Employee's net proceeds resulting from form the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by the Employee under this Agreement such that no amount paid to the Employee under this Agreement and any other agreement, contract contract, or understanding heretofore or hereafter entered into between the Employee and the Company (the "Other AgreementsAgreement") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to the Employee (including groups or classes or of participants or of beneficiaries of which the Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to the Employee shall be limited to the Reduced Amount, then the Employee shall have the right, in the Employee's sole discretion, to designate those payments or benefits under this Agreement, any other AgreementsOther Agreement, and/or Benefit Plankany Benefits Plan, that should be reduced or eliminated so as to avoid having the payment to the Employee under this Agreement be subject to the Excise Tax.

Parachute Payment Limitation. If Notwithstanding anything in this agreement to the contrary, if any payment severance pay or benefit to Employee benefits payable under this Agreement agreement (without the application of this Section 7), either alone or together with other payments, awards, benefits or distributions (or any acceleration of any payment, award, benefit or distribution) pursuant to any agreement, plan or arrangement with Asxxxx xr any of its affiliates (the “Total Payments”), would be considered constitute a "“parachute payment" within the meaning of ” (as defined in Section 280(g)(b)(2) 280G of the U.S. Internal Revenue Code of 1986, as amended, and ifregulations thereunder (the “Code”)), then the following shall occur: (a) tax counsel selected by Asxxxx’x xndependent auditors and acceptable to Executive shall compute the net present value to Executive of all the Total Payments after reduction for any applicable federal the excise tax taxes imposed by Code Section 4999 of and for any normal income taxes that would be imposed on Executive if such Total Payments constituted Executive’s sole taxable income; and (b) said tax counsel shall next compute the maximum Total Payments that can be provided without any such Total Payments being characterized as “Excess Parachute Payments” (as defined in Code ("Excise Tax"Section 280G) and federal income tax imposed reduce the result by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employee's net proceeds resulting from any normal income taxes that would be imposed on Executive if such reduced Total Payments constituted Executive’s sole taxable income. If the payment result derived in clause (a) above is greater than the result derived in clause (b) above by more than 10% of the Reduced Amount described below, after reduction for federal income taxesresult derived in clause (b) above, then Asxxxx xhall pay Executive the full amount payable and of the benefits provided under this Agreement Total Payments without reduction. If the result derived from clause (a) above is not greater than the result derived in clause (b) above by more than 10% of the result derived in clause (b) above, then Asxxxx xhall pay Executive the maximum Total Payments possible without any such Total Payments being characterized as Excess Parachute Payments. The determination of how such Total Payments will be reduced shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received made by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is Executive in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxgood faith after consultation with Asxxxx.

Parachute Payment Limitation. If any payment or benefit to Employee under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and if, after reduction for any applicable federal excise tax imposed by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Other Agreements, and/or Benefit PlankPlan, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Tax.

Parachute Payment Limitation. If Anything in this Agreement or the Equity Agreements to the contrary notwithstanding, in the event that: (a) the aggregate payments or benefits to be made or distributed by the Company or its affiliates to or for the benefit of Mx. Xxxxxxxx (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) which are deemed to be parachute payments as defined in Internal Revenue Code (“Code”) Section 280G or any successor thereto (the “Change of Control Benefits”) would be deemed to include an “excess parachute payment” under Code Section 280G; and (b) if such Change of Control Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times Mx. Xxxxxxxx’x “base amount,” as determined in accordance with Code Section 280G and the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax times the Non-Triggering Amount would be greater than the aggregate value of the Change of Control Benefits (without such reduction) minus (x) the amount of tax required to be paid by Mx. Xxxxxxxx thereon by Code Section 4999 and further minus (y) the product of the Change of Control Benefits times the marginal rate of any applicable state and federal income tax, then the Change of Control Benefits shall be reduced to the Non-Triggering Amount. Any reduction made pursuant to this Section 2(b) shall be made in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”), (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to Employee under be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and ifor otherwise, after reduction for any applicable federal excise tax imposed that if reduced in value by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than one dollar reduces the amount of Employee's net proceeds resulting from the parachute payment (as defined in Code Section 280G) by one dollar, determined as if such payment, distribution or benefit had been paid or distributed on the date of the Reduced Amount described belowevent triggering the excise tax. “Partial Credit Payment” means any payment, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement distribution or benefit that is not a Full Credit Payment. In no event shall be limited Mx. Xxxxxxxx have any discretion with respect to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision ordering of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxreductions.

Parachute Payment Limitation. If Notwithstanding the provisions of Section 8(a) above, if (i) any payment payments or benefit benefits received or to Employee under be received by Executive, whether pursuant to the terms of this Agreement would be considered or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control, constitute "parachute paymentpayments" (such payments or benefits being hereinafter referred to as the "Parachute Payments") within the meaning of Section 280(g)(b)(2280G(b)(2) of the Code Code, and if, after reduction for (ii) the aggregate present value of the Parachute Payments reduced by any applicable federal excise tax imposed by under Section 4999 of the Code (or any similar tax that may hereafter be imposed) (the "Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than 3 times Executive's "base amount" as defined in Section 280G(b)(3) of the Code, then, in lieu of that portion of the Parachute Payments to which Executive would otherwise be entitled under subsections (i), (ii), and (iii) of Section 8(a) above, the Company shall pay Executive an amount (if any) such that the aggregate present value of the Parachute Payments is equal to 2.99 times such base amount (the resulting amount that is payable under subsections (i), (ii), and (iii) of Section 8(a) is the "Capped Amount"). The Capped Amount shall be apportioned and substituted for the amounts that would otherwise have been payable under subsections (i), (ii), and (iii) of Section 8(a) above but for this Section 8(c) on a prorata basis, and each such amount shall be paid at the time specified in the corresponding subsection of Section 8(a) above except as provided in Section 8(b) above. For this purpose, proration shall be accomplished by multiplying each amount that would otherwise have been payable under subsections (i), (ii), and (iii) of Section 8(a) above but for this Section 8(c) by a fraction, the numerator of which is the Capped Amount and the denominator of which is the aggregate amount that would otherwise have been payable under subsections (i), (ii), and (iii) of Section 8(a) but for this Section 8(c). For purposes of this Section 8(c), the base amount, the present value of the Parachute Payments, the amount of Employeethe Excise Tax and all other appropriate matters shall be determined by the Company's net proceeds resulting from independent auditors in accordance with the payment principles of Section 280G of the Reduced Amount described below, after reduction for federal income taxes, then Code and based upon the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received advice of tax counsel selected by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxauditors.

Parachute Payment Limitation. If Anything in this Agreement to the contrary notwithstanding, in the event that: (a) the aggregate payments or benefits to be made or distributed by the Company or its affiliates to or for the benefit of Participant (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) which are deemed to be parachute payments as defined in Internal Revenue Code (“Code”) Section 280G or any successor thereto (the “Change of Control Benefits”) would be deemed to include an “excess parachute payment” under Code Section 280G; and (b) if such Change of Control Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times Participant’s “base amount,” as determined in accordance with Code Section 280G and the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax times the Non-Triggering Amount would be greater than the aggregate value of the Change of Control Benefits (without such reduction) minus (x) the amount of tax required to be paid by Participant thereon by Code Section 4999 and further minus (y) the product of the Change of Control Benefits times the marginal rate of any applicable state and federal income tax, then the Change of Control Benefits shall be reduced to the Non-Triggering Amount. Any reduction made pursuant to this Section 2(b) shall be made in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”), (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to Employee under be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and ifor otherwise, after reduction for any applicable federal excise tax imposed that if reduced in value by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than one dollar reduces the amount of Employee's net proceeds resulting from the parachute payment (as defined in Code Section 280G) by one dollar, determined as if such payment, distribution or benefit had been paid or distributed on the date of the Reduced Amount described belowevent triggering the excise tax. “Partial Credit Payment” means any payment, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement distribution or benefit that is not a Full Credit Payment. In no event shall be limited Participant have any discretion with respect to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision ordering of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxreductions.

Parachute Payment Limitation. If Notwithstanding any payment other provisions of ---------------------------- this Agreement, the Prior Agreement or benefit to Employee under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and if, after reduction for any applicable federal excise tax imposed by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract contract, or understanding heretofore or hereafter entered into between Employee and by the Company Executive with Skaneateles Bancorp, Skaneateles Bank, BSB Bancorp, the Bank, or any subsidiary or affiliate of any of them (the "Other Agreements") ), and notwithstanding any formal or informal plan or other arrangement heretofore or hereafter adopted by Skaneateles Bancorp, Skaneateles Bank, BSB Bancorp, the Company Bank or any such subsidiary or affiliate for the direct or indirect provision of compensation to Employee the Executive (including groups or classes or of participants or beneficiaries of which Employee the Executive is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee the Executive (a "Benefit Plan") ), the Executive shall not have any right to receive any payment or other benefit under this Agreement, the Prior Agreement, any Other Agreement, or any Benefit Plan if such payment or benefit, taking into account all other payments or benefits to or for the Executive under this Agreement, the Prior Agreement, all Other Agreements, and all Benefit Plans, would be subject cause any such payment to the Excise TaxExecutive to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (a "Parachute Payment"). In the event that the amount payable receipt of any such payment or benefit under this Agreement, the Prior Agreement, any Other Agreement, or any Benefit Plan would cause the Executive to Employee shall be limited considered to the Reduced Amounthave received a Parachute Payment, then Employee the Executive shall have the right, in Employeethe Executive's sole discretion, to designate those payments or benefits under this Agreement, the Prior Agreement, any other Other Agreements, and/or any Benefit PlankPlans, that which should be reduced or eliminated so as to avoid having the payment to Employee the Executive under this Agreement be subject deemed to be a Parachute Payment. In the event that there is a dispute between the parties as to whether, or the extent to which, a reduction in such payments to the Excise TaxExecutive is required to prevent such payment from constituting a Parachute Payment, the parties agree that they shall be bound by the determination of such matter by a national accounting firm selected jointly by the Bank and the Executive (or, if they are unable to agree, chosen by lot from among an equal number of nominees designated by the Bank and the Executive); provided, however that the firm selected shall not be the accounting firm that is then serving as the auditor of the Employers unless the Executive consents in writing to such selection. In the event that the Executive would otherwise be deemed to have received an amount that would constitute a Parachute Payment, the amount paid to him that exceeds the maximum amount permissible under this Section 11 shall be treated as a loan to him and shall be repaid, with interest, to the extent necessary to reduce the amount paid to the maximum permissible amount. Any such loan shall be repaid in full six months after (a) the date on which the Bank notifies the Executive that a loan relationship exists, if there is no dispute as to whether, or the extent to which, a reduction is required, or (b) the date on which the Executive and the Bank receive the written opinion of a national accounting firm (selected in the manner described above), if there is such a dispute, and may be repaid by the Executive without prepayment penalty at any time during such six month period.

Parachute Payment Limitation. If (a) Notwithstanding any payment or benefit to Employee under other provision of this Agreement would or any other plan, arrangement or agreement to which the Executive is subject or a party to the contrary, if any of the payments or benefits provided or to be considered a "provided by the Company to the Executive or for the Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payment" payments (“Parachute Payments”) within the meaning of Section 280(g)(b)(2) 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and ifwould, after reduction but for any applicable federal this Section 7.13, be subject to the excise tax imposed by under Section 4999 of the Code ("Excise Tax"or any successor provision thereto) and federal income or any similar tax imposed by state or local law and any interest or penalties with respect to such taxes (collectively, the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes“Excise Tax”), then the amount payable and the benefits provided under this Agreement Covered Payments shall be limited payable either (i) in full or (ii) reduced to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such minimum extent necessary to ensure that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and portion of the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee Covered Payments is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In , whichever of the event that foregoing clauses (i) or (ii) results in the Executive’s receipt on an after-tax basis of the greatest amount payable to Employee shall be limited to of payments and benefits after taking into account the Reduced Amountapplicable federal, then Employee shall have the rightstate, in Employee's sole discretionlocal and foreign income, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to employment and excise taxes (including the Excise Tax). (b) Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute deferred compensation subject to Section 409A of the Code shall be reduced first, and (ii) Covered Payments that are cash payments shall be reduced before non-cash payments, and Covered Payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (c) If, notwithstanding the initial application of this Section 7.13, the Internal Revenue Service determines that any Covered Payment constitutes an “excess parachute payment” (as defined by Section 280G(b) of the Code), this Section 7.13 will be reapplied based on the Internal Revenue Service’s determination, and the Executive will be required to promptly repay the portion of the Covered Payments required to avoid imposition of the Excise Tax together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive’s receipt of the excess payments until the date of repayment. (d) Any determination required under this Section 7.13 shall be made in writing in good faith by the accounting firm which was the Company’s independent auditor immediately before the Change in Control (the “Accountants”), which shall provide detailed supporting calculations to the Company and the Executive as requested by the Company or the Executive. The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 7.13. The Company shall be responsible for all fees and expenses of the Accountants. 2. This Amendment, together with the Agreement, represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings between such parties. This Amendment may not be modified or amended except by a written agreement duly executed by both parties hereto.

Parachute Payment Limitation. If any payment or benefit to Employee Executive under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2280G(b)(2) of the Code and and, if, after reduction for any applicable federal excise tax imposed by Section 4999 of the Code (the "Excise Tax") and federal income tax imposed by the Code, EmployeeExecutive's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of EmployeeExecutive's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee Executive under this Agreement such that no amount paid to Employee Executive under this Agreement and any other agreement, contract contract, or understanding heretofore or hereafter entered into between Employee Executive and the Company (the "Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee Executive (including groups or classes or of participants or beneficiaries of which Employee Executive is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee Executive (a "Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee Executive shall be limited to the Reduced Amount, then Employee Executive shall have the right, in EmployeeExecutive's sole discretion, to designate those payments or benefits under this Agreement, any other Other Agreements, and/or any Benefit PlankPlans, that should be reduced or eliminated so as to avoid having the payment to Employee Executive under this Agreement be subject to the Excise Tax.

Parachute Payment Limitation. If any payment or benefit to the Employee under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and if, after reduction for any applicable federal excise tax imposed by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, the Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of the Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by the Employee under this Agreement such that no amount paid to the Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between the Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to the Employee (including groups or classes or participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for the Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to the Employee shall be limited to the Reduced Amount, then the Employee shall have the right, in the Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to the Employee under this Agreement be subject to the Excise Tax.

Parachute Payment Limitation. If Anything in this Agreement or the Option Agreements to the contrary notwithstanding, in the event that: (a) the aggregate payments or benefits to be made or distributed by the Company or its affiliates to or for the benefit of DxXxxxx (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) which are deemed to be parachute payments as defined in Internal Revenue Code (“Code”) Section 280G or any successor thereto (the “Change of Control Benefits”) would be deemed to include an “excess parachute payment” under Code Section 280G; and (b) if such Change of Control Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times DxXxxxx’x “base amount,” as determined in accordance with Code Section 280G and the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax times the Non-Triggering Amount would be greater than the aggregate value of the Change of Control Benefits (without such reduction) minus (x) the amount of tax required to be paid by DxXxxxx thereon by Code Section 4999 and further minus (y) the product of the Change of Control Benefits times the marginal rate of any applicable state and federal income tax, then the Change of Control Benefits shall be reduced to the Non-Triggering Amount. Any reduction made pursuant to this Section 2(b) shall be made in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”), (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to Employee under be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and ifor otherwise, after reduction for any applicable federal excise tax imposed that if reduced in value by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than one dollar reduces the amount of Employee's net proceeds resulting from the parachute payment (as defined in Code Section 280G) by one dollar, determined as if such payment, distribution or benefit had been paid or distributed on the date of the Reduced Amount described belowevent triggering the excise tax. “Partial Credit Payment” means any payment, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement distribution or benefit that is not a Full Credit Payment. In no event shall be limited DxXxxxx have any discretion with respect to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision ordering of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxreductions.

Parachute Payment Limitation. If Anything in this Letter or the Option Agreements to the contrary notwithstanding, in the event that: (a) the aggregate payments or benefits to be made or distributed by TheStreet or its affiliates to you or for your benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Letter or otherwise) which are deemed to be parachute payments as defined in Code Section 280G or any payment or benefit to Employee under this Agreement successor thereto (the “Change of Control Benefits”) would be considered a "deemed to include an “excess parachute payment" within ” under Code Section 280G; and (b) if such Change of Control Benefits were reduced to an amount (the meaning “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times your “base amount,” as determined in accordance with Code Section 280(g)(b)(2) 280G and the Non-Triggering Amount less the product of the Code and if, after reduction for marginal rate of any applicable federal excise tax imposed by Section 4999 of the Code ("Excise Tax") state and federal income tax imposed by times the Code, Employee's net proceeds Non-Triggering Amount would be greater than the aggregate value of the amounts payable and the benefits provided under this Agreement would be less than Change of Control Benefits (without such reduction) minus (x) the amount of Employee's net proceeds resulting from tax required to be paid by you thereon by Code Section 4999 and further minus (y) the payment product of the Reduced Amount described below, after reduction for Change of Control Benefits times the marginal rate of any applicable state and federal income taxestax, then the amount payable and the benefits provided under this Agreement Change of Control Benefits shall be limited reduced to the Reduced Non-Triggering Amount. The "Reduced Amount" Any reduction made pursuant to this Section 9(b) shall be made in accordance with the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and following order of priority: (i) stock options whose exercise price exceeds the Company fair market value of the optioned stock ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member“Underwater Options”), whether or not such compensation is deferred, is (ii) Full Credit Payments (as defined below) that are payable in cash, or is in the form of a benefit to or for Employee ("Benefit Plan"iii) would be subject to the Excise Taxnon-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In the event that the amount payable to Employee each case, reductions shall be limited to the Reduced Amount, then Employee shall have the right, made in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Tax.reverse

Parachute Payment Limitation. If Notwithstanding the provisions of Section 8(a) above, if (i) any payment payments or benefit benefits received or to Employee under be received by Executive, whether pursuant to the terms of this Agreement would be considered or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control, constitute "parachute paymentpayments" (such payments or benefits being hereinafter referred to as the "Parachute Payments") within the meaning of Section 280(g)(b)(2280G(b)(2) of the Code and ifCode, after reduction for and (ii) the aggregate present value of the Parachute Payments reduced by any applicable federal excise tax imposed by under Section 4999 of the Code (or any similar tax that may hereafter be imposed) (the "Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than 3 times Executive's "base amount" as defined in Section 280G(b)(3) of the Code, then, in lieu of that portion of the Parachute Payments to which Executive would otherwise be entitled under subsections (i), (ii), (iii) and (iv) of Section 8(a) above, the Company shall pay Executive an amount (if any) such that the aggregate present value of the Parachute Payments is equal to 2.99 times such base amount (the resulting amount that is payable under subsections (i), (ii), (iii) and (iv) of Section 8(a) is the "Capped Amount"). The Capped Amount shall be apportioned and substituted for the amounts that would otherwise have been payable under subsections (i), (ii), (iii) and (iv) of Section 8(a) above but for this Section 8(c) on a prorata basis, and each such amount shall be paid at the time specified in the corresponding subsection of Section 8(a) above except as provided in Section 8(b) above. For this purpose, proration shall be accomplished by multiplying each amount that would otherwise have been payable under subsections (i), (ii), (iii) and (iv) of Section 8(a) above but for this Section 8(c) by a fraction, the numerator of which is the Capped Amount and the denominator of which is the aggregate amount that would otherwise have been payable under subsections (i), (ii), (iii) and (iv) of Section 8(a) but for this Section 8(c). For purposes of this Section 8(c), the base amount, the present value of the Parachute Payments, the amount of Employee's net proceeds resulting from the payment Excise Tax and all other appropriate matters shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G of the Reduced Amount described below, after reduction for federal income taxes, then Code and based upon the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received advice of tax counsel selected by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Tax.auditors

Parachute Payment Limitation. If any payment or benefit to the Employee under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2280G(b)(2) of the Code and if, ; after reduction for any applicable federal excise tax imposed by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, . the Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of the Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable pay able and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by the Employee under this Agreement such that no amount paid to the Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between the Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to ~e Employee (including groups or classes or of participants or beneficiaries of which the Employee is a member), ! whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for die Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to the Employee shall be limited to the Reduced Amount, then the Employee shall have the right, in the Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or any Benefit PlankPlans, that should be reduced or eliminated so as to avoid having the payment to the Employee under this Agreement be subject to the Excise Tax.

Parachute Payment Limitation. If any payment or benefit to the Employee under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2280G(b)(2) of the Code and if, after reduction for any applicable federal excise tax imposed by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Code the Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of the Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable pay able and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by the Employee under this Agreement such that no amount paid to the Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between the Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to the Employee (including groups or classes or of participants or beneficiaries of which the Employee is a member), ) whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for the Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to the Employee shall be limited to the Reduced Amount, then the Employee shall have the right, in the Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or any Benefit PlankPlans, that should be reduced or eliminated so as to avoid having the payment to the Employee under this Agreement be subject to the Excise Tax.

Parachute Payment Limitation. If Notwithstanding the provisions of Section 8(a) above, if (i) any payment payments or benefit benefits received or to Employee under be received by Executive, whether pursuant to the terms of this Agreement would be considered or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control, constitute "parachute paymentpayments" (such payments or benefits being hereinafter referred to as the "Parachute Payments") within the meaning of Section 280(g)(b)(2280G(b)(2) of the Code Code, and if, after reduction for (ii) the aggregate present value of the Parachute Payments reduced by any applicable federal excise tax imposed by under Section 4999 of the Code (or any similar tax that may hereafter be imposed) (the "Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than 3 times Executive's "base amount" as defined in Section 280G(b)(3) of the Code, then, in lieu of that portion of the Parachute Payments to which Executive would otherwise be entitled under subsections (i), (ii), and (iii) of Section 8(a) above, the Company shall pay Executive an amount (if any) such that the aggregate present value of the Parachute Payments is equal to 2.99 times such base amount (the resulting amount that is payable under subsections (i), (ii), and (iii) of Section 8(a) is the "Capped Amount"). The Capped Amount shall be apportioned and substituted for the amounts that would otherwise have been payable under subsections (i), (ii), and (iii) of Section 8(a) above but for this Section 8(c) on a prorata basis, and each such amount shall be paid at the time specified in the corresponding subsection of Section 8(a) above except as provided in Section 8(b) above. For this purpose, proration shall be accomplished by multiplying each amount that would otherwise have been payable under subsections (i), (ii), and (iii) of Section 8(a) above but for this Section 8(c) by a fraction, the numerator of which is the Capped Amount and the denominator of which is the aggregate amount that would otherwise have been payable under subsections (i), (ii), and (iii) of Section 8(a) but for this Section 8(c). For purposes of this Section 8(c), the base amount, the present value of the Parachute Payments, the amount of Employee's net proceeds resulting from the payment Excise Tax and all other appropriate matters shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G of the Reduced Amount described below, after reduction for federal income taxes, then Code and based upon the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received advice of tax counsel selected by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxauditors.

Parachute Payment Limitation. If any payment or benefit payable to the Employee under this Agreement would be considered a "parachute payment," as determined by the Board, within the meaning of Section 280(g)(b)(2280G(b)(2) of the a Code and if, after reduction for any applicable federal excise tax imposed by Section 4999 of the Code (the "Excise Tax") and federal income tax imposed by the Code, the Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of the Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by the Employee under this Agreement such that no amount paid to the Employee under this Agreement and any other agreement, contract contract, or understanding heretofore or hereafter entered into between the Employee and the Company (the "Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to the Employee (including groups or classes or participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred, ; is in cash, or is in the form of a benefit to or for the Employee (a "Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable it is necessary to Employee shall be limited limit payments or benefits under this Agreement to the Reduced Amount, then the Employee shall have the right, in the Employee's sole discretion, to designate those payments or benefits under this Agreement, any and other Agreementsagreements, and/or any Benefit Plank, Plans that should be reduced or eliminated so as to avoid having the payment to the Employee under this Agreement be subject to the his Excise Tax.

Parachute Payment Limitation. If any payment or benefit to Employee ---------------------------- the Executive under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code") and if, after reduction for any applicable federal excise tax imposed by Code Section 4999 of (the Code ("Excise Tax") and federal income tax imposed by the Code, Employeethe Executive's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employeethe Executive's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee the Executive under this Agreement such that no amount paid to Employee the Executive under this Agreement and any other agreement, contract contract, or understanding heretofore or hereafter entered into between Employee the Executive and the Company (the "Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee the Executive (including groups or classes or of participants or beneficiaries of which Employee the Executive is a member), whether or not such compensation is deferred, is in cash, or is in the form of if a benefit to or for Employee the Executive (a "Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee the Executive shall be limited to the Reduced Amount, then Employee the Executive shall have the right, in Employeethe Executive's sole discretion, to designate those payments or benefits under this Agreement, any other Other Agreements, and/or any Benefit PlankPlans, that should be reduced or eliminated so as to avoid having the payment to Employee the Executive under this Agreement be subject to the Excise Tax.

Parachute Payment Limitation. If Anything in this Agreement or the Equity Agreement to the contrary notwithstanding, in the event that: (a) the aggregate payments or benefits to be made or distributed by the Company or its affiliates to or for the benefit of Mx. Xxxxx (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) which are deemed to be parachute payments as defined in Internal Revenue Code (“Code”) Section 280G or any successor thereto (the “Change of Control Benefits”) would be deemed to include an “excess parachute payment” under Code Section 280G; and (b) if such Change of Control Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dolls ($1.00) less than an amount equal to three (3) times Mx. Xxxxx’x “base amount,” as determined in accordance with Code Section 280G and the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax times the Non-Triggering Amount would be greater than the aggregate value of the Change of Control Benefits (without such reduction) minus (x) the amount of tax required to be paid by Mx. Xxxxx thereon by Code Section 4999 and further minus (y) the product of the Change of Control Benefits times the marginal rate of any applicable state and federal income tax, then the Change of Control Benefits shall be reduced to the Non-Triggering Amount. Any reduction made pursuant to this Section 2(b) shall be made in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”), (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to Employee under be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the turns of this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and ifor otherwise, after reduction for any applicable federal excise tax imposed that if reduced in value by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than one dollar reduces the amount of Employee's net proceeds resulting from the parachute payment (as defined in Code Section 280G) by one dollar, determined as if such payment, distribution or benefit had been paid or distributed on the date of the Reduced Amount described belowevent triggering the excise tax. “Partial Credit Payment” means any payment, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited distribution or benefit that is not a Full Credit Payment In no event shalt Mx. Xxxxx have any discretion with respect to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision ordering of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxreductions.

Parachute Payment Limitation. If (a) Notwithstanding any payment or benefit to Employee under other provision of this Agreement would or any other plan, arrangement or agreement to which the Executive is subject or a party to the contrary, if any of the payments or benefits provided or to be considered a "provided by the Company to the Executive or for the Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payment" payments (“Parachute Payments”) within the meaning of Section 280(g)(b)(2) 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and ifwould, after reduction but for any applicable federal this Section 7.13, be subject to the excise tax imposed by under Section 4999 of the Code ("Excise Tax"or any successor provision thereto) and federal income or any similar tax imposed by state or local law and any interest or penalties with respect to such taxes (collectively, the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employee's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes“Excise Tax”), then the amount payable and the benefits provided under this Agreement Covered Payments shall be limited payable either (i) in full or (ii) reduced to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such minimum extent necessary to ensure that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and portion of the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee Covered Payments is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In , whichever of the event that foregoing clauses (i) or (ii) results in the Executive’s receipt on an after-tax basis of the greatest amount payable to Employee shall be limited to of payments and benefits after taking into account the Reduced Amountapplicable federal, then Employee shall have the rightstate, in Employee's sole discretionlocal and foreign income, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to employment and excise taxes (including the Excise Tax). (b) Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute deferred compensation subject to Section 409A of the Code shall be reduced first, and (ii) Covered Payments that are cash payments shall be reduced before non-cash payments, and Covered Payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (c) If, notwithstanding the initial application of this Section 7.13, the Internal Revenue Service determines that any Covered Payment constitutes an “excess parachute payment” (as defined by Section 280G(b) of the Code), this Section 7.13 will be reapplied based on the Internal Revenue Service’s determination, and the Executive will be required to promptly repay the portion of the Covered Payments required to avoid imposition of the Excise Tax together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive’s receipt of the excess payments until the date of repayment. (d) Any determination required under this Section 7.13 shall be made in writing in good faith by the accounting firm which was the Company’s independent auditor immediately before the Change in Control (the “Accountants”), which shall provide detailed supporting calculations to the Company and the Executive as requested by the Company or the Executive. The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 7.13. The Company shall be responsible for all fees and expenses of the Accountants. 3. This Amendment, together with the Agreement, represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings between such parties. This Amendment may not be modified or amended except by a written agreement duly executed by both parties hereto.

Parachute Payment Limitation. If Anything in this Agreement or the Option Agreements to the contrary notwithstanding, in the event that: (a) the aggregate payments or benefits to be made or distributed by the Company or its affiliates to or for the benefit of XxXxxxx (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) which are deemed to be parachute payments as defined in Internal Revenue Code (“Code”) Section 280G or any successor thereto (the “Change of Control Benefits”) would be deemed to include an “excess parachute payment” under Code Section 280G; and (b) if such Change of Control Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times XxXxxxx’x “base amount,” as determined in accordance with Code Section 280G and the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax times the Non-Triggering Amount would be greater than the aggregate value of the Change of Control Benefits (without such reduction) minus (x) the amount of tax required to be paid by XxXxxxx thereon by Code Section 4999 and further minus (y) the product of the Change of Control Benefits times the marginal rate of any applicable state and federal income tax, then the Change of Control Benefits shall be reduced to the Non-Triggering Amount. Any reduction made pursuant to this Section 2(b) shall be made in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”), (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to Employee under be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and ifor otherwise, after reduction for any applicable federal excise tax imposed that if reduced in value by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than one dollar reduces the amount of Employee's net proceeds resulting from the parachute payment (as defined in Code Section 280G) by one dollar, determined as if such payment, distribution or benefit had been paid or distributed on the date of the Reduced Amount described belowevent triggering the excise tax. “Partial Credit Payment” means any payment, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement distribution or benefit that is not a Full Credit Payment. In no event shall be limited XxXxxxx have any discretion with respect to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision ordering of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxreductions.

Parachute Payment Limitation. If any payment or benefit to Employee the ---------------------------- Executive under this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code") and if, after reduction for any applicable federal excise tax imposed by Code Section 4999 of (the Code ("Excise Tax") and federal income tax imposed by the Code, Employeethe Executive's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than the amount of Employeethe Executive's net proceeds resulting from the payment of the Reduced Amount described below, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement shall be limited to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee the Executive under this Agreement such that no amount paid to Employee the Executive under this Agreement and any other agreement, contract contract, or understanding heretofore or hereafter entered into between Employee the Executive and the Company (the "Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision of compensation to Employee the Executive (including groups or classes or of participants or beneficiaries of which Employee the Executive is a member), whether or not such compensation is deferred, is in cash, or is in the form of if a benefit to or for Employee the Executive (a "Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee the Executive shall be limited to the Reduced Amount, then Employee the Executive shall have the right, in Employeethe Executive's sole discretion, to designate those payments or benefits under this Agreement, any other Other Agreements, and/or any Benefit PlankPlans, that should be reduced or eliminated so as to avoid having the payment to Employee the Executive under this Agreement be subject to the Excise Tax.. [The Following Paragraphs (b), (c) and (d) Apply to Tier 2 Only]

Parachute Payment Limitation. If Anything in this Agreement or the Equity Agreements to the contrary notwithstanding, in the event that: (a) the aggregate payments or benefits to be made or distributed by the Company or its affiliates to or for the benefit of Xx. Xxxxxxxx (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) which are deemed to be parachute payments as defined in Internal Revenue Code (“Code”) Section 280G or any successor thereto (the “Change of Control Benefits”) would be deemed to include an “excess parachute payment” under Code Section 280G; and (b) if such Change of Control Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times Xx. Xxxxxxxx’x “base amount,” as determined in accordance with Code Section 280G and the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax times the Non-Triggering Amount would be greater than the aggregate value of the Change of Control Benefits (without such reduction) minus (x) the amount of tax required to be paid by Xx. Xxxxxxxx thereon by Code Section 4999 and further minus (y) the product of the Change of Control Benefits times the marginal rate of any applicable state and federal income tax, then the Change of Control Benefits shall be reduced to the Non-Triggering Amount. Any reduction made pursuant to this Section 2(b) shall be made in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”), (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to Employee under be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement would be considered a "parachute payment" within the meaning of Section 280(g)(b)(2) of the Code and ifor otherwise, after reduction for any applicable federal excise tax imposed that if reduced in value by Section 4999 of the Code ("Excise Tax") and federal income tax imposed by the Code, Employee's net proceeds of the amounts payable and the benefits provided under this Agreement would be less than one dollar reduces the amount of Employee's net proceeds resulting from the parachute payment (as defined in Code Section 280G) by one dollar, determined as if such payment, distribution or benefit had been paid or distributed on the date of the Reduced Amount described belowevent triggering the excise tax. “Partial Credit Payment” means any payment, after reduction for federal income taxes, then the amount payable and the benefits provided under this Agreement distribution or benefit that is not a Full Credit Payment. In no event shall be limited Xx. Xxxxxxxx have any discretion with respect to the Reduced Amount. The "Reduced Amount" shall be the largest amount that could be received by Employee under this Agreement such that no amount paid to Employee under this Agreement and any other agreement, contract or understanding heretofore or hereafter entered into between Employee and the Company ("Other Agreements") and any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect provision ordering of compensation to Employee (including groups or classes or participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee ("Benefit Plan") would be subject to the Excise Tax. In the event that the amount payable to Employee shall be limited to the Reduced Amount, then Employee shall have the right, in Employee's sole discretion, to designate those payments or benefits under this Agreement, any other Agreements, and/or Benefit Plank, that should be reduced or eliminated so as to avoid having the payment to Employee under this Agreement be subject to the Excise Taxreductions.