Common use of Limitations on Payments Under Certain Circumstances Clause in Contracts

Limitations on Payments Under Certain Circumstances. Notwithstanding any provision of any other plan, program, arrangement or agreement to the contrary, in the event that it shall be determined that any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received or to be received by Executive (a “Payment”) in connection with or as a result of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company and subject to the tax (the “Excise Tax”) imposed by Section 4999 (or any successor section) of the Code, the Payments, whether under this Agreement or otherwise, shall be reduced so that the Payment, in the aggregate, is reduced to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”). Without limiting the generality of the foregoing, any determination by the Accounting Firm under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7, the Payments shall be reduced in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.

Limitations on Payments Under Certain Circumstances. Notwithstanding any provision of any other plan, program, arrangement or agreement to the contrary, in the event that it shall be determined that any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received or to be received by Executive (a “Payment”) in connection with or as a result of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control of Parent or the Company, or in the ownership of a substantial portion of the assets of Parent or the Company and subject to the tax (the “Excise Tax”) imposed by Section 4999 (or any successor section) of the Code, the Payments, whether under this Agreement or otherwise, shall be reduced so that the Payment, in the aggregate, is reduced to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by Parent or the Company (the “Accounting Firm”). Without limiting the generality of the foregoing, any determination by the Accounting Firm under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7, the Payments shall be reduced in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: not (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any provision other provisions of any other planthis Agreement, program, arrangement or agreement to the contrary, in the event that it shall be determined that if any payment or benefit received or to be provided received by the Company to Executive (including any payment or benefit received in connection with a change in control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement) (all such payments or and benefits received or being hereinafter referred to be received by Executive (a as the “PaymentTotal Payments”) in connection with or as a result would constitute an “excess parachute payment” within the meaning of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control Section 280G of the CompanyCode that would be subject (in whole or part), or in the ownership of a substantial portion to any excise tax imposed under Section 4999 of the assets of the Company and subject to the tax Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement, or agreement, the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) imposed the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state, and local income taxes on such reduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state, and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction is necessary pursuant to this Section 21(a), then the reduction shall occur by reducing the Severance Payment, then the accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant), and then by reducing the accelerated vesting of other equity awards (based on the reverse order of the date of grant). (b) For purposes of determining whether and the extent to which the Total Payments shall be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 4999 (or any successor section280G(b) of the Code, the Payments, whether under this Agreement or otherwise, Code shall be reduced so taken into account, (ii) no portion of the Total Payments shall be taken into account that, based on the determination of a nationally recognized certified public accounting firm that is selected by the PaymentCompany before a Change in Control, in the aggregate, is reduced and reasonably acceptable to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in Executive, for purposes of making the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company 21 (the “Accounting Firm”). Without limiting , does not constitute a “parachute payment” within the generality meaning of Section 280G(b)(2) of the foregoingCode (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account that, based on the determination of the Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” within the meaning of Section 280G(b)(3) of the Code allocable to such reasonable compensation, and (iii) the value of any determination non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. In connection with making determinations under this Section 7 21, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control, including any noncompetition provisions that may apply to the Executive. (or for holding oneself out as available to perform services and refraining from performing services (such as c) At the time that payments are made under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7Agreement, the Payments Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from the Accounting Firm or other advisors or consultants (and any such opinions or advice that are in writing shall be reduced in attached to the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment datestatement).

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any other provision of any other plan, program, arrangement or agreement to the contraryunder this Award Agreement, in the event that it shall be determined that you become entitled to receive or receive any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received under an Award or to be received by Executive (a “Payment”) in connection under any other plan, agreement, program or arrangement with or as a result of any event which is deemed by the U.S. Internal Revenue Service Company or any other taxing authority to constitute a change in Related Company (collectively, the ownership or effective control of the Company“Payments”), that may separately or in the ownership aggregate constitute “parachute payments” within the meaning of a substantial portion Section 280G of the assets Code and the Treasury regulations promulgated thereunder (“Section 280G”) and it is determined that, but for this Section 10(a), any of the Company and Payments will be subject to any excise tax pursuant to Section 4999 of the tax Code or any similar or successor provision (the “Excise Tax”), the Company shall pay to you either (i) imposed by Section 4999 (or any successor section) the full amount of the CodePayments or (ii) an amount equal to the Payments reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by you, on an after-tax basis (with consideration of all taxes incurred in connection with the Payments, whether under this Agreement or otherwiseincluding the Excise Tax), shall be reduced so that the Payment, in the aggregate, is reduced to of the greatest amount of Payments notwithstanding that could all or some portion of the Payments may be paid subject to Executive without giving rise to any the Excise Tax; provided that in the event that Executive . For purposes of determining whether you would be placed in receive a better greater after-tax position after receiving all benefit from the Capped Payments than from receipt of the full amount of the Payments and not having any reduction for purposes of Payments as provided hereunderSection 10(c) below (if applicable), Executive shallyou shall be deemed to pay federal, notwithstanding state and local taxes at the provisions highest marginal rate of any other plan, program, arrangement or agreement to taxation for the contrary, receive all Payments applicable calendar year. (b) All computations and pay any applicable Excise Tax. All determinations under this Section 7 called for by Sections 10(a) and 10(b) shall be made and reported in writing to the Company and you by a nationally recognized accounting firm third-party service provider selected by the Company (the “Accounting FirmTax Advisor”), and all such computations and determinations shall be conclusive and binding on the Company and you. Without limiting For purposes of such calculations and determinations, the generality Tax Advisor may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the foregoing, any determination Code. The Company and you shall furnish to the Tax Advisor such information and documents as the Tax Advisor may reasonably request in order to make their required calculations and determinations. The Company shall bear all fees and expenses charged by the Accounting Firm under this Tax Advisor in connection with its services. (c) In the event that Section 7 shall take into account the value of any reasonable compensation for services 10(a) applies and a reduction is required to be rendered by Executive (or for holding oneself out as available applied to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7thereunder, the Payments shall be reduced by the Company in a manner and order of priority that provides you with the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A largest net after-tax value; provided that payments of the Code equal after-tax present value shall be reduced first; and (b) all other Payments shall then be reducedin the reverse order of payment. Notwithstanding anything to the contrary herein, in each case as follows: (i) cash payments any such reduction shall be reduced before non-cash payments and (ii) payments structured in a manner intended to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.comply with Section 409A.

Limitations on Payments Under Certain Circumstances. Notwithstanding any provision of any other plan, program, arrangement or agreement to the contrary, in the event that it shall be determined that any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received or to be received by Executive (a “Payment”) in connection with or as a result of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company and subject to the tax (the “Excise Tax”) imposed by Section 4999 (or any successor section) of the Code, the Payments, whether under this Agreement or otherwise, shall be reduced so that the Payment, in the aggregate, is reduced to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 10 shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”). Without limiting the generality of the foregoing, any determination by the Accounting Firm under this Section 7 10 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 710, the Payments shall be reduced in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any other provision of any other plan, program, arrangement or agreement to the contraryunder this Award Agreement, in the event that it shall be determined that you become entitled to receive or receive any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received under an Award or to be received by Executive (a “Payment”) in connection under any other plan, agreement, program or arrangement with or as a result of any event which is deemed by the U.S. Internal Revenue Service Company or any other taxing authority to constitute a change in Related Company (collectively, the ownership or effective control of the Company“Payments”), that may separately or in the ownership aggregate constitute “parachute payments” within the meaning of a substantial portion Section 280G of the assets Code and the Treasury regulations promulgated thereunder (“Section 280G”) and it is determined that, but for this Section 11(a), any of the Company and Payments will be subject to any excise tax pursuant to Section 4999 of the tax Code or any similar or successor provision (the “Excise Tax”), the Company shall pay to you either (i) imposed by Section 4999 (or any successor section) the full amount of the CodePayments or (ii) an amount equal to the Payments reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by you, on an after-tax basis (with consideration of all taxes incurred in connection with the Payments, whether under this Agreement or otherwiseincluding the Excise Tax), shall be reduced so that the Payment, in the aggregate, is reduced to of the greatest amount of Payments notwithstanding that could all or some portion of the Payments may be paid subject to Executive without giving rise to any the Excise Tax; provided that in the event that Executive . For purposes of determining whether you would be placed in receive a better greater after-tax position after receiving all benefit from the Capped Payments than from receipt of the full amount of the Payments and not having any reduction for purposes of Payments as provided hereunderSection 11(c) below (if applicable), Executive shallyou shall be deemed to pay federal, notwithstanding state and local taxes at the provisions highest marginal rate of any other plan, program, arrangement or agreement to taxation for the contrary, receive all Payments applicable calendar year. (b) All computations and pay any applicable Excise Tax. All determinations under this Section 7 called for by Sections 11(a) and 11(b) shall be made and reported in writing to the Company and you by a nationally recognized accounting firm third-party service provider selected by the Company (the “Accounting FirmTax Advisor”), and all such computations and determinations shall be conclusive and binding on the Company and you. Without limiting For purposes of such calculations and determinations, the generality Tax Advisor may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the foregoing, any determination Code. The Company and you shall furnish to the Tax Advisor such information and documents as the Tax Advisor may reasonably request in order to make their required calculations and determinations. The Company shall bear all fees and expenses charged by the Accounting Firm under this Tax Advisor in connection with its services. (c) In the event that Section 7 shall take into account the value of any reasonable compensation for services 11(a) applies and a reduction is required to be rendered by Executive (or for holding oneself out as available applied to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7thereunder, the Payments shall be reduced by the Company in a manner and order of priority that provides you with the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A largest net after-tax value; provided that payments of the Code equal after-tax present value shall be reduced first; and (b) all other Payments shall then be reducedin the reverse order of payment. Notwithstanding anything to the contrary herein, in each case as follows: (i) cash payments any such reduction shall be reduced before non-cash payments and (ii) payments structured in a manner intended to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.comply with Section 409A.

Limitations on Payments Under Certain Circumstances. Notwithstanding any provision of any other plan, program, arrangement or agreement to the contrary, in the event that it shall be determined that any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received or to be received by Executive (a “Payment”) in connection with or as a result of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control of Parent or the Company, or in the ownership of a substantial portion of the assets of Parent or the Company and subject to the tax (the “Excise Tax”) imposed by Section 4999 (or any successor section) of the Code, the Payments, whether under this Agreement or otherwise, shall be reduced so that the Payment, in the aggregate, is reduced to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by Parent or the Company (the “Accounting Firm”). Without limiting the generality of the foregoing, any determination by the Accounting Firm under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7, the Payments shall be reduced in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.

Limitations on Payments Under Certain Circumstances. Notwithstanding any provision of any other plan, program, arrangement or agreement to the contrary, in the event that it shall be determined that any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received or to be received by Executive (a “Payment”) in connection with or as a result of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company (the “CIC”) and subject to the tax (the “Excise Tax”) imposed by Section 4999 (or any successor section) of the Code, the Payments, whether under this Agreement or otherwise, shall be reduced so that the Payment, in the aggregate, is reduced to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm expert in Section 280G who is not providing services to the person effectuating the CIC and selected by the Company prior to a CIC and acceptable to the Executive (the “Accounting Firm”). Without limiting the generality of the foregoing, any determination by the Accounting Firm under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7, the Payments shall be reduced in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject order that maximizes the economic benefit to Section 409A Executive. All determinations of the Code Accounting Firm shall be reduced first; final and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments binding on Executive and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment datethe Company and its successors.

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any provision other provisions of any other planthis Agreement, program, arrangement or agreement to the contrary, in the event that it shall be determined that if any payment or benefit received or to be provided received by the Company to Executive (including any payment or benefit received in connection with a change in control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement) (all such payments or benefits received or and benefits, including the Severance Payments, being hereinafter referred to be received by Executive (a as the “PaymentTotal Payments”) in connection with or as a result would constitute an “excess parachute payment” within the meaning of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control Section 280G of the CompanyCode that would be subject (in whole or part), or in the ownership of a substantial portion to any excise tax imposed under Section 4999 of the assets of the Company and subject to the tax Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement, or agreement, the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) imposed the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state, and local income taxes on such reduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state, and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction in the Total Payments is necessary pursuant to this Section 23(a), then the reduction shall occur by first reducing the Severance Amount payable pursuant to Section 4999 11(b)(ii) and then by reducing accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant), and finally by reducing the accelerated vesting of other equity awards (based on the reverse order of the date of grant). (b) For purposes of determining whether and the extent to which the Total Payments shall be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or any successor sectionenjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code, the Payments, whether under this Agreement or otherwise, Code shall be reduced so taken into account, (ii) no portion of the Total Payments shall be taken into account which, based on the determination of a nationally recognized certified public accounting firm that is selected by the PaymentCompany, in the aggregate, is reduced and reasonably acceptable to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in Executive, for purposes of making the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company 24 (the “Accounting Firm”). Without limiting , does not constitute a “parachute payment” within the generality meaning of Section 280G(b)(2) of the foregoingCode (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account that, based on the determination of the Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” within the meaning of Section 280G(b)(3) of the Code allocable to such reasonable compensation, and (iii) the value of any determination non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (c) At the time that payments are made under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7Agreement, the Payments Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from the Accounting Firm or other advisors or consultants (and any such opinions or advice which are in writing shall be reduced attached to the statement). (d) For purposes of clarity, the Executive shall not be entitled to any form of tax gross-up in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to connection with Section 409A 280G of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.or Section 4999 of the Code under any circumstances. [Signature Page Follows]

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any other provision of any other plan, program, arrangement or agreement to the contraryunder this Agreement, in the event that it shall be determined that Employee becomes entitled to receive or receives any payment or benefit to be provided by the Company to Executive pursuant to the terms of under this Agreement or any other payments or benefits received under any other plan, agreement, program or to be received by Executive (a “Payment”) in connection arrangement with or as a result of any event which is deemed by the U.S. Internal Revenue Service Company or any other taxing authority to constitute a change entity that is directly or indirectly controlled by, in the ownership or effective control of or under common control with the CompanyCompany (collectively, the “Payments”), that may separately or in the ownership aggregate constitute “parachute payments” within the meaning of a substantial portion Section 280G of the assets Code and the Treasury regulations promulgated thereunder (“Section 280G”) and it is determined that, but for this Section 8, any of the Company and Payments will be subject to any excise tax pursuant to Section 4999 of the tax Code or any similar or successor provision (the “Excise Tax”), the Company shall pay to Employee either (i) imposed by Section 4999 (or any successor section) the full amount of the CodePayments or (ii) an amount equal to the Payments reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by Employee, on an after-tax basis (with consideration of all taxes incurred in connection with the Payments, whether under this Agreement or otherwiseincluding the Excise Tax), shall be reduced so that the Payment, in the aggregate, is reduced to of the greatest amount of Payments notwithstanding that could all or some portion of the Payments may be paid subject to Executive without giving rise to any the Excise Tax; provided that in the event that Executive . For purposes of determining whether Employee would be placed in receive a better greater after-tax position after receiving all benefit from the Capped Payments than from receipt of the full amount of the Payments and not having any reduction for purposes of Payments as provided hereunderSection 8(c) below (if applicable), Executive shallEmployee shall be deemed to pay federal, notwithstanding state and local taxes at the provisions highest marginal rate of any other plan, program, arrangement or agreement to taxation for the contrary, receive all Payments applicable calendar year. (b) All computations and pay any applicable Excise Tax. All determinations under this Section 7 called for by Sections 8(a) and 8(c) shall be made and reported in writing to the Company and Employee by a nationally recognized accounting firm third-party service provider selected by the Company (the “Accounting FirmTax Advisor”), and all such computations and determinations shall be conclusive and binding on the Company and Employee. Without limiting For purposes of such calculations and determinations, the generality Tax Advisor may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the foregoing, any determination Code. The Company and Employee shall furnish to the Tax Advisor such information and documents as the Tax Advisor may reasonably request in order to make its required calculations and determinations. The Company shall bear all fees and expenses charged by the Accounting Firm under this Tax Advisor in connection with its services. (c) In the event that Section 7 shall take into account the value of any reasonable compensation for services 8(a) applies and a reduction is required to be rendered by Executive (or for holding oneself out as available applied to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7thereunder, the Payments shall be reduced by the Company in a manner and order of priority that provides Employee with the largest net after-tax value; provided that payments of equal after-tax present value shall be reduced in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject reverse order of payment. Notwithstanding anything to the contrary herein, any such reduction shall be structured in a manner intended to comply with Section 409A of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment dateCode.

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any provision other provisions of any other plan, program, arrangement or agreement to the contrarythis Agreement, in the event that it shall be determined that any payment or benefit received or to be provided received by the Company to Executive (including any payment or benefit received in connection with a change in control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments or benefits received or and benefits, including the Severance Payments, being hereinafter referred to be received by Executive (a as the “PaymentTotal Payments”) in connection with or as a result would constitute an “excess parachute payment” within the meaning of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control Section 280G of the CompanyCode that would be subject (in whole or part), or in the ownership of a substantial portion to any excise tax imposed under Section 4999 of the assets of the Company and subject to the tax Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the Severance Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) imposed the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction in the Severance Payments is necessary pursuant to this Section 23(a), then the reduction shall occur by first reducing the Severance Amount payable pursuant to Section 4999 11(b)(ii) and then by reducing accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant), and finally by reducing the accelerated vesting of other equity awards (based on the reverse order of the date of grant). (b) For purposes of determining whether and the extent to which the Total Payments shall be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or any successor sectionenjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code, the Payments, whether under this Agreement or otherwise, Code shall be reduced so taken into account, (ii) no portion of the Total Payments shall be taken into account which, based on the determination of a nationally recognized certified public accounting firm that is selected by the PaymentCompany, in the aggregate, is reduced and reasonably acceptable to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in Executive, for purposes of making the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company 23 (the “Accounting Firm”). Without limiting , does not constitute a “parachute payment” within the generality meaning of Section 280G(b)(2) of the foregoingCode (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, based on the determination of the Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” within the meaning of Section 280G(b)(3) of the Code allocable to such reasonable compensation, and (iii) the value of any determination non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (c) At the time that payments are made under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7Agreement, the Payments Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from the Accounting Firm or other advisors or consultants (and any such opinions or advice which are in writing shall be reduced attached to the statement). (d) For purposes of clarity, the Executive shall not be entitled to any form of tax gross-up in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to connection with Section 409A 280G of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.or Section 4999 of the Code under any circumstances

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any other provision of any other plan, program, arrangement or agreement to the contraryunder this Award Agreement, in the event that it shall be determined that you become entitled to receive or receive any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received under an Award or to be received by Executive (a “Payment”) in connection under any other plan, agreement, program or arrangement with or as a result of any event which is deemed by the U.S. Internal Revenue Service Company or any other taxing authority to constitute a change in Related Company (collectively, the ownership or effective control of the Company“Payments”), that may separately or in the ownership aggregate constitute “parachute payments” within the meaning of a substantial portion Section 280G of the assets Code and the Treasury regulations promulgated thereunder (“Section 280G”) and it is determined that, but for this Section 11(a), any of the Company and Payments will be subject to any excise tax pursuant to Section 4999 of the tax Code or any similar or successor provision (the “Excise Tax”), the Company shall pay to you either (i) imposed by Section 4999 (or any successor section) the full amount of the CodePayments or (ii) an amount equal to the Payments reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by you, on an after-tax basis (with consideration of all taxes incurred in connection with the Payments, whether under this Agreement or otherwiseincluding the Excise Tax), shall be reduced so that the Payment, in the aggregate, is reduced to of the greatest amount of Payments notwithstanding that could all or some portion of the Payments may be paid subject to Executive without giving rise to any the Excise Tax; provided that in the event that Executive . For purposes of determining whether you would be placed in receive a better greater after-tax position after receiving all benefit from the Capped Payments than from receipt of the full amount of the Payments and not having any reduction for purposes of Payments as provided hereunderSection 11(c) below (if applicable), Executive shallyou shall be deemed to pay federal, notwithstanding state and local taxes at the provisions highest marginal rate of any other plan, program, arrangement or agreement to taxation for the contrary, receive all Payments applicable calendar year. (b) All computations and pay any applicable Excise Tax. All determinations under this Section 7 called for by Sections 11(a) and 11(b) shall be made and reported in writing to the Company and you by a nationally recognized accounting firm third-party service provider selected by the Company (the “Accounting FirmTax Advisor”), and all such computations and determinations shall be conclusive and binding on the Company and you. Without limiting For purposes of such calculations and determinations, the generality Tax Advisor may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the foregoing, any determination Code. The Company and you shall furnish to the Tax Advisor such information and documents as the Tax Advisor may reasonably request in order to make their required calculations and determinations. The Company shall bear all fees and expenses charged by the Accounting Firm under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7, the Payments shall be reduced Tax Advisor in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment dateconnection with its services.

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any provision other provisions of any other planthis Agreement, program, arrangement or agreement to the contrary, in the event that it shall be determined that if any payment or benefit received or to be provided received by the Company to Executive (including any payment or benefit received in connection with a change in control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement) (all such payments or benefits received or and benefits, including the Severance Payments, being hereinafter referred to be received by Executive (a as the “PaymentTotal Payments”) in connection with or as a result would constitute an “excess parachute payment” within the meaning of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control Section 280G of the CompanyCode that would be subject (in whole or part), or in the ownership of a substantial portion to any excise tax imposed under Section 4999 of the assets of the Company and subject to the tax Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement, or agreement, the Severance Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) imposed the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state, and local income taxes on such reduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state, and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction in the Severance Payments is necessary pursuant to this Section 23(a), then the reduction shall occur by first reducing the Severance Amount payable pursuant to Section 4999 11(b)(ii) and then by reducing accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant), and finally by reducing the accelerated vesting of other equity awards (based on the reverse order of the date of grant). (b) For purposes of determining whether and the extent to which the Total Payments shall be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or any successor sectionenjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code, the Payments, whether under this Agreement or otherwise, Code shall be reduced so taken into account, (ii) no portion of the Total Payments shall be taken into account which, based on the determination of a nationally recognized certified public accounting firm that is selected by the PaymentCompany, in the aggregate, is reduced and reasonably acceptable to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in Executive, for purposes of making the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company 23 (the “Accounting Firm”). Without limiting , does not constitute a “parachute payment” within the generality meaning of Section 280G(b)(2) of the foregoingCode (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account that, based on the determination of the Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” within the meaning of Section 280G(b)(3) of the Code allocable to such reasonable compensation, and (iii) the value of any determination non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (c) At the time that payments are made under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7Agreement, the Payments Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from the Accounting Firm or other advisors or consultants (and any such opinions or advice which are in writing shall be reduced attached to the statement). (d) For purposes of clarity, the Executive shall not be entitled to any form of tax gross-up in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to connection with Section 409A 280G of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.or Section 4999 of the Code under any circumstances. [Signature Page Follows]

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any provision other provisions of any other planthis Agreement, program, arrangement or agreement to the contrary, in the event that it shall be determined that if any payment or benefit received or to be provided received by the Company to Executive (including any payment or benefit received in connection with a change in control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement) (all such payments or and benefits received or being hereinafter referred to be received by Executive (a as the “PaymentTotal Payments”) in connection with or as a result would constitute an “excess parachute payment” within the meaning of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control Section 280G of the CompanyCode that would be subject (in whole or part), or in the ownership of a substantial portion to any excise tax imposed under Section 4999 of the assets of the Company and subject to the tax Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement, or agreement, the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) imposed the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state, and local income taxes on such reduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state, and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction in the Total Payments is necessary pursuant to this Section 23(a), then the reduction shall occur by first reducing any severance amount payable and then by reducing accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant), and finally by reducing the accelerated vesting of other equity awards (based on the reverse order of the date of grant). (b) For purposes of determining whether and the extent to which the Total Payments shall be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 4999 (or any successor section280G(b) of the Code, the Payments, whether under this Agreement or otherwise, Code shall be reduced so taken into account, (ii) no portion of the Total Payments shall be taken into account which, based on the determination of a nationally recognized certified public accounting firm that is selected by the PaymentCompany, in the aggregate, is reduced and reasonably acceptable to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in Executive, for purposes of making the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company 24 (the “Accounting Firm”). Without limiting , does not constitute a “parachute payment” within the generality meaning of Section 280G(b)(2) of the foregoingCode (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account that, based on the determination of the Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” within the meaning of Section 280G(b)(3) of the Code allocable to such reasonable compensation, and (iii) the value of any determination non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (c) At the time that payments are made under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7Agreement, the Payments Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from the Accounting Firm or other advisors or consultants (and any such opinions or advice which are in writing shall be reduced attached to the statement). (d) For purposes of clarity, the Executive shall not be entitled to any form of tax gross-up in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to connection with Section 409A 280G of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.or Section 4999 of the Code under any circumstances. [Signature Page Follows]

Limitations on Payments Under Certain Circumstances. Notwithstanding any provision of any other plan, program, arrangement or agreement to the contrary, in the event that it shall be determined that any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received or to be received by Executive (a “Payment”) in connection with or as a result of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company and subject to the tax (the “Excise Tax”) imposed by Section 4999 (or any successor section) of the Code, the Payments, whether under this Agreement or otherwise, shall be reduced so that the Payment, in the aggregate, is reduced to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided NAI-1510766203v7 hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”). Without limiting the generality of the foregoing, any determination by the Accounting Firm under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7, the Payments shall be reduced in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any provision other provisions of any other planthis Agreement, program, arrangement or agreement to the contrary, in the event that it shall be determined that if any payment or benefit received or to be provided received by the Company to Executive (including any payment or benefit received in connection with a change in control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement) (all such payments or benefits received or and benefits, including the Severance Payments, being hereinafter referred to be received by Executive (a as the “PaymentTotal Payments”) in connection with or as a result would constitute an “excess parachute payment” within the meaning of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control Section 280G of the CompanyCode that would be subject (in whole or part), or in the ownership of a substantial portion to any excise tax imposed under Section 4999 of the assets of the Company and subject to the tax Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement, or agreement, the Severance Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) imposed the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state, and local income taxes on such reduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state, and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction in the Severance Payments is necessary pursuant to this Section 23(a), then the reduction shall occur by first reducing the Severance Amount payable pursuant to Section 4999 11(b)(ii) and then by reducing accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant), and finally by reducing the accelerated vesting of other equity awards (based on the reverse order of the date of grant). (b) For purposes of determining whether and the extent to which the Total Payments shall be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or any successor sectionenjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code, the Payments, whether under this Agreement or otherwise, Code shall be reduced so taken into account, (ii) no portion of the Total Payments shall be taken into account which, based on the determination of a nationally recognized certified public accounting firm that is selected by the PaymentCompany, in the aggregate, is reduced and reasonably acceptable to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in Executive, for purposes of making the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company 23 (the “Accounting Firm”). Without limiting , does not constitute a “parachute payment” within the generality meaning of Section 280G(b)(2) of the foregoingCode (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account that, based on the determination of the Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” within the meaning of Section 280G(b)(3) of the Code allocable to such reasonable compensation, and (iii) the value of any determination non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (c) At the time that payments are made under this Section 7 shall take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7Agreement, the Payments Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from the Accounting Firm or other advisors or consultants (and any such opinions or advice which are in writing shall be reduced attached to the statement). (d) For purposes of clarity, the Executive shall not be entitled to any form of tax gross-up in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to connection with Section 409A 280G of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment dateor Section 4999 of the Code under any circumstances.

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any provision other provisions of any other plan, program, arrangement or agreement to the contrarythis Agreement, in the event that it shall be determined that any payment or benefit received or to be provided received by the Company to Executive (including any payment or benefit received in connection with a change in control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments or benefits received or and benefits, including the Severance Payments, being hereinafter referred to be received by Executive (a as the “PaymentTotal Payments”) would be subject (in connection with whole or as a result of part), to any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control excise tax imposed under Section 4999 of the Company, or in the ownership of a substantial portion of the assets of the Company and subject to the tax Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the Severance Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) imposed by the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction in Severance Payments is necessary pursuant to this Section 4999 22(a), then the reduction shall occur in the following order: (i) cash payments under Sections 11(b)(ii)(A) and 11(b)(ii)(B); (ii) cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant); (iii) cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (iv) reduction of welfare benefits. (b) For purposes of determining whether and the extent to which the Total Payments shall be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or any successor sectionenjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code, the Payments, whether under this Agreement or otherwise, Code shall be reduced so taken into account, (ii) no portion of the Total Payments shall be taken into account which, based on the determination of a nationally recognized certified public accounting firm that the Paymentis selected by Duke Energy, in the aggregate, is reduced and reasonably acceptable to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in Executive, for purposes of making the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company 22 (the “Accounting Firm”). Without limiting , does not constitute a “parachute payment” within the generality meaning of Section 280G(b)(2) of the foregoingCode (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, based on the determination of the Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Base Amount”) allocable to such reasonable compensation, and (iii) the value of any determination non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (c) At the time that payments are made under this Section 7 Agreement, Duke Energy shall take into account provide the value Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice Duke Energy has received from the Accounting Firm or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement). (d) For purposes of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7clarity, the Payments Executive shall not be reduced entitled to an form of tax gross-up in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to connection with Section 409A 280G of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment dateor Section 4999 of the Code under any circumstances.

Limitations on Payments Under Certain Circumstances. Notwithstanding any provision of any other plan, program, arrangement or agreement (a) Anything in this Agreement to the contrarycontrary notwithstanding, in the event that it the Accounting Firm shall be determined determine that any payment or benefit receipt of all Payments would subject the Executive to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received or to be received by Executive (a “Payment”) in connection with or as a result of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company and subject to the tax (the “Excise Tax”) imposed by under Section 4999 (or any successor section) of the Code, the PaymentsAccounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, whether under this then the aggregate Agreement or otherwise, Payments shall be reduced so to such Reduced Amount. (b) If the Accounting Firm determines that the Payment, in the aggregate, is aggregate Agreement Payments should be reduced to the greatest amount Reduced Amount, the Company shall promptly give the Executive notice to that could be paid to Executive without giving rise to any Excise Tax; provided that effect and a copy of the detailed calculation thereof. The Company shall reduce the Agreement Payments in the event that Executive would be placed in a better after-tax position after receiving all Payments following order: (1) by reducing benefits payable pursuant to Section 5(a)(1)(B) of the Agreement and not having any reduction then (2) by reducing amounts payable pursuant to Section 5(a)(2) of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise TaxAgreement. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”). Without limiting the generality of the foregoing, any determination by the Accounting Firm under this Section 7 8 shall be binding upon the Company and the Executive and shall be made within 60 days of the Executive’s Date of Termination. In connection with making determinations under this Section 8, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change of Control, including any non-competition provisions that may apply to the Executive and the Company shall cooperate in the valuation of any such services, including any non-competition provisions. (c) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced benefit of the Executive pursuant to this Section 7Agreement which should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Payments Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of the Executive shall be reduced repaid by the Executive to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the following order: (a) Payments Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which do not constitute “nonqualified deferred compensation” the Executive is subject to tax under Section 409A 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be reduced first; promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (d) All fees and (b) all other Payments shall then be reduced, expenses of the Accounting Firm in each case as follows: (i) cash payments implementing the provisions of this Section 8 shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment dateborne by the Company.

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any other provision of any other plan, program, arrangement or agreement to the contraryunder this Award Agreement, in the event that it shall be determined that you become entitled to receive or receive any payment or benefit to be provided by the Company to Executive pursuant to the terms of this Agreement or any other payments or benefits received under an Award or to be received by Executive (a “Payment”) in connection under any other plan, agreement, program or arrangement with or as a result of any event which is deemed by the U.S. Internal Revenue Service Company or any other taxing authority to constitute a change in Related Company (collectively, the ownership or effective control of the Company“Payments”), that may separately or in the ownership aggregate constitute “parachute payments” within the meaning of a substantial portion Section 280G of the assets Code and the Treasury regulations promulgated thereunder (“Section 280G”) and it is determined that, but for this Section 10(a), any of the Company and Payments will be subject to any excise tax pursuant to Section 4999 of the tax Code or any similar or successor provision (the “Excise Tax”), the Company shall pay to you either (i) imposed by Section 4999 (or any successor section) the full amount of the CodePayments or (ii) an amount equal to the Payments reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by you, on an after-tax basis (with consideration of all taxes incurred in connection with the Payments, whether under this Agreement or otherwiseincluding the Excise Tax), shall be reduced so that the Payment, in the aggregate, is reduced to of the greatest amount of Payments notwithstanding that could all or some portion of the Payments may be paid subject to Executive without giving rise to any the Excise Tax; provided that in the event that Executive . For purposes of determining whether you would be placed in receive a better greater after-tax position after receiving all benefit from the Capped Payments than from receipt of the full amount of the Payments and not having any reduction for purposes of Payments as provided hereunderSection 10(c) below (if applicable), Executive shallyou shall - - be deemed to pay federal, notwithstanding state and local taxes at the provisions highest marginal rate of any other plan, program, arrangement or agreement to taxation for the contrary, receive all Payments applicable calendar year. (b) All computations and pay any applicable Excise Tax. All determinations under this Section 7 called for by Sections 10(a) and 10(b) shall be made and reported in writing to the Company and you by a nationally recognized accounting firm third-party service provider selected by the Company (the “Accounting FirmTax Advisor”), and all such computations and determinations shall be conclusive and binding on the Company and you. Without limiting For purposes of such calculations and determinations, the generality Tax Advisor may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the foregoing, any determination Code. The Company and you shall furnish to the Tax Advisor such information and documents as the Tax Advisor may reasonably request in order to make their required calculations and determinations. The Company shall bear all fees and expenses charged by the Accounting Firm under this Tax Advisor in connection with its services. (c) In the event that Section 7 shall take into account the value of any reasonable compensation for services 10(a) applies and a reduction is required to be rendered by Executive (or for holding oneself out as available applied to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7thereunder, the Payments shall be reduced by the Company in a manner and order of priority that provides you with the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to Section 409A largest net after-tax value; provided that payments of the Code equal after-tax present value shall be reduced first; and (b) all other Payments shall then be reducedin the reverse order of payment. Notwithstanding anything to the contrary herein, in each case as follows: (i) cash payments any such reduction shall be reduced before non-cash payments and (ii) payments structured in a manner intended to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.comply with Section 409A.

Limitations on Payments Under Certain Circumstances. (a) Notwithstanding any provision other provisions of any other planthis Agreement or the Bonus Agreement, program, arrangement or agreement to the contrary, in the event that it shall be determined that if any payment or benefit received or to be provided received by the Company to Executive (including any payment or benefit received in connection with a change in control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement Agreement, the Bonus Agreement, or any other plan, arrangement, or agreement) (all such payments or benefits received or and benefits, including the Severance Payments, being hereinafter referred to be received by Executive (a as the “PaymentTotal Payments”) in connection with or as a result would constitute an “excess parachute payment” within the meaning of any event which is deemed by the U.S. Internal Revenue Service or any other taxing authority to constitute a change in the ownership or effective control Section 280G of the CompanyCode that would be subject (in whole or part), or in the ownership of a substantial portion to any excise tax imposed under Section 4999 of the assets of the Company and subject to the tax Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement, or agreement, the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) imposed the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state, and local income taxes on such reduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state, and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phaseout of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction in the Total Payments is necessary pursuant to this Section 24(a), then the reduction shall occur by first reducing the payments due under the Bonus Agreement as provided for in the Bonus Agreement, and then reducing the payments due hereunder, beginning with the Severance Payment, then by reducing the any other amounts payable pursuant to this Agreement, and finally by reducing the accelerated vesting of equity awards (based on the reverse order of the date of grant). (b) For purposes of determining whether and the extent to which the Total Payments shall be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 4999 (or any successor section280G(b) of the Code, the Payments, whether under this Agreement or otherwise, Code shall be reduced so taken into account, (ii) no portion of the Total Payments shall be taken into account which, based on the determination of a nationally recognized certified public accounting firm that is selected by the PaymentCompany, in the aggregate, is reduced and reasonably acceptable to the greatest amount that could be paid to Executive without giving rise to any Excise Tax; provided that in Executive, for purposes of making the event that Executive would be placed in a better after-tax position after receiving all Payments and not having any reduction of Payments as provided hereunder, Executive shall, notwithstanding the provisions of any other plan, program, arrangement or agreement to the contrary, receive all Payments and pay any applicable Excise Tax. All determinations under this Section 7 shall be made by a nationally recognized accounting firm selected by the Company 24 (the “Accounting Firm”). Without limiting , does not constitute a “parachute payment” within the generality meaning of Section 280G(b)(2) of the foregoingCode (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account that, based on the determination of the Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” within the meaning of Section 280G(b)(3) of the Code allocable to such reasonable compensation, and (iii) the value of any determination non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (c) At the time that payments are made under this Section 7 shall take into account Agreement or under the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). If the Payments are to be reduced pursuant to this Section 7Bonus Agreement, the Payments Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from the Accounting Firm or other advisors or consultants (and any such opinions or advice which are in writing shall be reduced attached to the statement). (d) For purposes of clarity, the Executive shall not be entitled to any form of tax gross-up in the following order: (a) Payments which do not constitute “nonqualified deferred compensation” subject to connection with Section 409A 280G of the Code shall be reduced first; and (b) all other Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date.or Section 4999 of the Code under any circumstances. [Signature Page Follows]