Common use of 409A Compliance Clause in Contracts

409A Compliance. This Agreement is intended to comply with or be exempt from Code §409A, and accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §409A and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean “separation from service.” If the Executive is a specified employee within the meaning of that term under Code §409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such separation from service, and (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.

409A Compliance. This Agreement is intended to comply with or be exempt from Code §409A, and accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §409A and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean “separation from service.” If the Executive is a specified employee within the meaning of that term under Code §409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such separation from service, and (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit benefit, and (iii) no such reimbursement, expenses eligible for reimbursement reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim counterclaim, or recoupment by any other amount unless otherwise permitted by Code §409A.

409A Compliance. This Agreement It is intended to that this Agreement comply with or be exempt from Section 409A of the Code §and the Treasury Regulations and IRS guidance thereunder (collectively referred to as “Section 409A”). Notwithstanding anything to the contrary, and accordinglythis Agreement shall, to the maximum extent permittedpossible, this Agreement shall be administered, interpreted to be and construed in compliance a manner consistent with Section 409A. To the extent that any reimbursement, fringe benefit or exempt from Code §409A. Notwithstanding any other provision to other, similar plan or arrangement in which the contrary, Executive participates during the Term or thereafter provides for a termination “deferral of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §Section 409A and Section 1.409A-1(h) of the Treasury Regulations andCode, for purposes of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean “separation from service.” If the Executive is a specified employee within the meaning of that term under Code §409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration amount of the six (6)-month period measured from benefit provided thereunder in a taxable year of the date Executive shall not affect the amount of such separation from servicebenefit provided in any other taxable year of the Executive (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), and (ii) any portion of such benefit provided in the date form of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed a reimbursement shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to before the last day of the Executive’s taxable year following the Executive’s taxable year in which the expense was incurred, and (iii) such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is benefit shall not be subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable yearbenefit. For all purposes of Code §409Aunder this Agreement, reference to the Executive’s right to receive any installment payment pursuant to this Agreement “termination of employment” (and corollary terms) from the Company shall be treated construed to refer to the Executive’s “separation from service” (as determined under Treas. Reg. Section 1.409A-1(h), as uniformly applied by the Company) from the Company. If the Executive is a right to receive a series “specified employee” within the meaning of separate and distinct payments. In no event shall Section 409A, any payment required to be made to the Executive hereunder upon or following the Executive’s date of termination for any reason other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code) shall, to the extent necessary to comply with and avoid imposition on the Executive of any tax penalty imposed under, Section 409A, be delayed and paid in a single lump sum during the ten (10) day period following the six (6) month anniversary of the date of termination. Any severance payments or benefits under this Agreement that constitutes non-qualified would be considered deferred compensation under Section 409A will be paid on, or, in the case of installments, will not commence until, the sixty-second (62nd) day following separation from service, or, if later, such time as is required by the preceding sentence or by Section 409A. Any installment payments that would have been made to the Executive during the sixty-two (62)-day period immediately following the Executive’s separation from service but for purposes of Code §409A the preceding sentence will be subject paid to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.the Executive on the sixty-second (62nd) day following the Executive’s separation from service and the remaining payments shall be made as provided in this Agreement.

409A Compliance. This Agreement is intended to comply with or be exempt from Code §409A, and accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §409A and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean “separation from service.” If the Executive is a specified employee within the meaning of that term under Code §409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such separation from service, and (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.

409A Compliance. This Agreement It is intended to that this Agreement comply with or be exempt from Section 409A of the Code §and the Treasury Regulations and IRS guidance thereunder (collectively referred to as “Section 409A”). Notwithstanding anything to the contrary, and accordinglythis Agreement shall, to the maximum extent permittedpossible, this Agreement shall be administered, interpreted to be and construed in compliance a manner consistent with Section 409A. To the extent that any reimbursement, fringe benefit or exempt from Code §409A. Notwithstanding any other provision to other, similar plan or arrangement in which the contrary, Executive participates during the Term or thereafter provides for a termination “deferral of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §Section 409A and Section 1.409A-1(h) of the Treasury Regulations andCode, for purposes (a) the amount of any such provision the benefit provided thereunder in a taxable year of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean “separation from service.” If the Executive is shall not affect the amount of such benefit provided in any other taxable year of the Executive (except that a specified employee within plan providing medical or health benefits may impose a generally applicable limit on the meaning amount that may be reimbursed or paid), (b) any portion of that term under Code §409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account such benefit provided in the form of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such separation from service, and (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed reimbursement shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to before the last day of the Executive’s taxable year following the Executive’s taxable year in which the expense was incurred and (c) such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is benefit shall not be subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable yearbenefit. For all purposes of Code §409Aunder this Agreement, reference to the Executive’s right to receive any installment payment pursuant to this Agreement “termination of employment” (and corollary terms) from the Company shall be treated construed to refer to the Executive’s “separation from service” (as determined under Treas. Reg. Section 1.409A-1(h), as uniformly applied by the Company) from the Company. If the Executive is a right to receive a series “specified employee” within the meaning of separate and distinct payments. In no event shall Section 409A, any payment required to be made to the Executive hereunder upon or following her date of termination for any reason other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code) shall, to the extent necessary to comply with, and avoid imposition on the Executive of any tax penalty imposed under this Agreement that constitutes nonSection 409A, be delayed and paid in a single lump sum during the ten day period following the six-qualified deferred compensation for purposes month anniversary of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.the date of termination.

409A Compliance. This Agreement is intended to comply with or be exempt from Code §409AIf, and accordingly, to at the maximum extent permitted, this Agreement shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a termination time of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also a Executive’s “separation from service” from within the Company meaning of Treasury Regulation Section 1.409A-1(h), Executive is a “specified employee” (within the meaning of Code §Section 409A), any benefit as to which Section 409A and Section 1.409A-1(h) penalties could be assessed that becomes payable to Executive on account of the Treasury Regulations and, for purposes of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean Executive’s “separation from service.” If the Executive is a specified employee within the meaning of that term under Code §409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such separation from service, and (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to the Executive in a lump sumExecutive, without interest thereon, on the date six months and all remaining payments due one day after such separation from service. It is intended that any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with and avoid the imputation of any tax, penalty, or interest under Code Section 409A and the regulations and guidance promulgated thereunder (collectively, the “Nonqualified Deferred Compensation Rules”). This Agreement shall be paid construed and interpreted consistent with that intent. With respect to any expenses eligible for reimbursement that are required to be included in Executive’s gross income for federal income tax purposes, such expenses shall be reimbursed to Executive no later than December 31 of the year following the year in which Executive incurs the related expenses. In no event shall the amount of expenses (or provided in-kind benefits) eligible for reimbursement in accordance with one calendar year affect the normal payment dates specified herein. To amount of expenses (or in-kind benefits) eligible for reimbursement in any other calendar year (except for those medical reimbursements referred to in Section 105(b) of the extent any reimbursements Internal Revenue Code of 1986), nor shall Executive’s right to reimbursement or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct paymentsbenefit. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation is subject to Code Section 409A be made by the Company (prior to the termination of this Agreement) unless such payment would be classified as a payment upon “separation from service” within the meaning of the Nonqualified Deferred Compensation Rules. Each payment under this Agreement shall be considered a separate payment for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.Treasury Regulation Sections 1.409A-1(b)(4) and 1.409A-2(b)(2).

409A Compliance. This Agreement is intended to comply with or be exempt from Code §409A, and accordingly, to To the maximum extent permitted, this Agreement shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing or action by the Company would subject the Employee to liability for interest or additional taxes under Section 409A of the payment of “deferred compensation” (as Code, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Company. It is intended that this Agreement will comply with Code Section 409A and the interpretive guidance thereunder, including the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind distributions, and this Agreement shall be administered accordingly, and interpreted and construed on a basis consistent with such term is defined intent. All references in §409A) upon or following a this Agreement to the Employee’s termination of employment unless such termination is also shall mean a “separation from service” from the Company within the meaning of Code §Section 409A and Treasury Regulation Section 1.409A-1(h) 1.409A-1(h)(1)(ii). Notwithstanding anything to the contrary herein, if the Employee is a “specified employee” as defined in Code Section 409A, any portion of the Treasury Regulations and, for purposes amounts payable under this Agreement as a result of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment that are not eligible for any of the exceptions to the application of Code Section 409A (such as the severance pay exception or like terms the short-term deferral exception), shall mean “separation from service.” If not be paid to the Executive is a specified employee within the meaning of that term under Code §409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is Employee until the earlier of (i) the expiration of the six (6)-month period measured from the date of such the Employee’s “separation from service, and ” or (ii) the date Employee’s death. Any series of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed hereunder shall be paid to the Executive in considered a lump sum, and all remaining series of separate payments due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. purposes of Code Section 409A. To the extent any reimbursements or in-kind benefits benefit payments under this Agreement constitute non-qualified deferred compensation for purposes of are subject to Code §Section 409A, such reimbursements and in-kind benefit payments shall be made in accordance with Treasury Regulation §1.409A-3(i)(1)(iv) (ior any similar or successor provisions). This Agreement may be amended to the extent necessary (including retroactively) all such expenses by the Company in order to preserve compliance with Code Section 409A. The preceding shall not be construed as a guarantee of any particular tax effect for the Employee’s compensation and benefits and the Company does not guarantee that any compensation or other reimbursements benefits provided under this Agreement shall be made on or prior to will satisfy the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes provisions of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §Section 409A.

409A Compliance. This a. The parties agree that this Agreement is intended to comply with the requirements of Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) or be exempt an exemption from Code §Section 409A. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A, provided, however, that Executive understands and accordinglyagrees that the Company shall not be held liable or responsible for any taxes, to the maximum extent permittedpenalties, this Agreement shall be interpreted to be in interests or other expenses incurred by Executive on account of non-compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a Section 409A. b. A termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §Section 409A and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this agreementAgreement, references to a “separation,” “termination,” “termination of employment employment” or like terms shall mean “separation from service.” If Notwithstanding anything to the contrary in this Agreement, if Executive is deemed on the date of termination to be a “specified employee employee” within the meaning of that term under Code §409ASection 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit that is considered non-qualified deferred compensation under Code §Section 409A and payable on account of a “separation from service,” and that is not exempt from Section 409A as involuntary separation pay or a short-term deferral (or otherwise), such payment or benefit shall be made on or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service, and ” of Executive or (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. ). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Subsection 9(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sumsum without interest, and all any remaining payments and benefits due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified for them herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §Section 409A, the Executive’s right to receive any installment payment pursuant to payments under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payments. In no event shall payment. c. With regard to any payment under this Agreement provision herein that constitutes nonprovides for reimbursement of costs and expenses or in-qualified deferred compensation for purposes of Code §409A be subject to offsetkind benefits, counterclaim or recoupment by any other amount unless otherwise except as permitted by Code §409A.Section 409A, all such payments shall be made on or before the last day of calendar year following the calendar year in which the expense occurred.

409A Compliance. This Agreement is intended shall be interpreted, construed, and operated either to be exempt from the provisions of Internal Revenue Code Section 409A (“409A”), as amended or any successor thereto, or, to the extent subject to 409A, to comply with 409A and any regulations and other guidance thereunder. Nothing in this Agreement shall provide a basis for EXECUTIVE to take action against EMPLOYER or be exempt from Code §any affiliate with respect to matters covered by 409A, and accordinglyin no event shall the EMPLOYER or any of its affiliates be liable for any tax, interest, or penalties that may be imposed under 409A or any damages for failing to the maximum extent permitted, comply with 409A. Each payment made under this Agreement shall be interpreted designated as a “separate payment” within the meaning of 409A. References to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a “termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of employment” and similar terms used in this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also a are intended to refer to “separation from service” from the Company within the meaning of Code §409A and Section 1.409A-1(h) of to the Treasury Regulations and, for purposes of any such provision of this agreement, references extent necessary to a “separation,” “termination,” “termination of employment or like terms shall mean “separation from service.” comply with 409A. If the Executive is a specified employee within the meaning of that term under Code §409A, then (as reasonably determined by EMPLOYER in accordance with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account Treasury Regulations § 1.409A-3(i)(2)) as of a separation from service, such payment shall be made on the date which is the earlier EXECUTIVE’s termination of (i) the expiration of the six (6)-month period measured from the date of such separation from serviceemployment with EMPLOYER, and (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Periodif any payment, all payments delayed shall be paid to the Executive in a lump sumbenefit, and all remaining payments due under this Agreement shall be paid or entitlement provided for in accordance with the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, or otherwise both (ia) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes (within the meaning of Code §409A 409A) and (b) cannot be subject paid or provided in a manner otherwise provided herein without subjecting EXECUTIVE to offsetadditional tax or interest (or both) under 409A, counterclaim then any such payment, benefit, or recoupment by any other amount unless otherwise permitted by Code §409A.entitlement that is payable during the first six (6) months following the termination of employment shall be paid or provided to EXECUTIVE in a lump sum payment to be made on the earlier of (x) EXECUTIVE’s death and (y) the first business day of the seventh month immediately following EXECUTIVE’s termination of employment.

409A Compliance. This (a) The parties agree that this Agreement is intended shall be interpreted to comply with or be exempt from Section 409A of the Internal Revenue Code §409Aof 1986, as amended (the “Code”), and accordingly, the regulations and guidance promulgated thereunder to the maximum extent permittedapplicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be interpreted construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. In no event whatsoever will any member of the Company Group, or any of their respective affiliates or any directors, officers, agents, attorneys, employees, executives, shareholders, members, managers, trustees, fiduciaries, representatives, principals, accountants, insurers, successors or assigns of such member of the Company Group or such affiliate be liable for any additional tax, interest or penalties that may be imposed on you under Code Section 409A or any damages for failing to be in compliance comply with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a Section 409A. (b) A termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “nonqualified deferred compensation” (as such term is defined in §409A) under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §Section 409A and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this agreementAgreement, references to a “separation,” “termination,” “termination of employment employment” or like terms shall mean “separation from service.” If you are deemed on the Executive is Termination Date to be a “specified employee employee” within the meaning of that term under Code §409ASection 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered non-qualified nonqualified deferred compensation under Code §Section 409A and payable on account of a “separation from service, ,” such payment or benefit shall be made on or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such your “separation from service, ” and (ii) the date of the Executive’s your death (the “Delay Period”) to the extent required under Code §409A. ). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 9(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to the Executive you in a lump sum, and all any remaining payments and benefits due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified for them herein. To . (c) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the extent any reimbursements right to reimbursement or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall not be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and benefit, (iiiii) no such reimbursement, the amount of expenses eligible for reimbursement reimbursement, or in-kind benefits benefits, provided in during any taxable year shall in any way not affect the expenses eligible for reimbursement, or in-kind benefits benefits, to be provided, provided in any other taxable year. ; provided, that this clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of your taxable year following the taxable year in which the expense occurred. (d) For purposes of Code §Section 409A, the Executive’s your right to receive any installment payment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any Whenever a payment under this Agreement that constitutes non-qualified deferred compensation for purposes specifies a payment period with reference to a number of Code §409A days (e.g., “payment shall be subject to offsetmade within thirty (30) days following the Termination Date”), counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.the actual date of payment within the specified period shall be within the sole discretion of the Company.

409A Compliance. This Agreement is intended to comply with or the short-term deferral rule under Treasury Regulation Section 1.409A-1(b)(4) and be exempt from Section 409A of the Internal Revenue Code §409Aof 1986, as amended (the “Code”), and accordinglyshall be construed and interpreted in accordance with such intent, provided that, if any severance provided at any time hereunder involves non-qualified deferred compensation within the meaning of Section 409A of the Code, it is intended to comply with the maximum extent permitted, this Agreement applicable rules with regard thereto and shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a accordingly. A termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement letter providing for the payment of “deferred compensation” (as such term is defined in §409A) any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A of the Code unless such termination is also a “separation from service” from the Company within the meaning of Code §Section 409A and Section 1.409A-1(h) of the Treasury Regulations Code and, for purposes of any such provision of this agreementletter, references to a “separation,” “termination,” “termination of employment employment” or like terms shall mean “separation from service.” If you are deemed on the Executive is date of termination to be a “specified employee employee” within the meaning of that term under Code §409ASection 409A(a)(2)(B) of the Code, then with regard to any payment that is considered non-qualified deferred compensation under Section 409A of the Code §409A and payable on account of a “separation from service, ,” such payment or benefit shall be made on or provided at the date which is the earlier of (iA) the date that is immediately following the expiration of the six (6)-month period measured from the date of such your “separation from service”, and (iiB) the date of the Executive’s your death (the “Delay Period”) to the extent required under Code §409A. ). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this paragraph (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive you in a lump sum, and all any remaining payments and benefits due under this Agreement letter shall be paid or provided for in accordance with the normal payment dates specified for them herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §409ASection 409A of the Code, the Executive’s your right to receive any installment payment payments pursuant to this Agreement letter shall be treated as a right to receive a series of separate and distinct payments. In no event shall may you, directly or indirectly, designate the calendar year of any payment to be made under this Agreement letter that constitutes is considered non-qualified deferred compensation compensation. In the event the time period for purposes considering any release and it becoming effective as a condition of Code §409A receiving severance shall overlap two calendar years, no amount of such severance shall be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.paid in the earlier calendar year.

409A Compliance. This Agreement is intended to comply with or be exempt from Code §409A, and accordingly, to the maximum extent permitted, The provisions of this Agreement are intended and shall be interpreted and administered so as to be not result in compliance with the imposition of additional tax or exempt from interest under Section 409A of the Code §409A. Notwithstanding any other provision (as defined below) where applicable. References herein to the contrary, a termination of Executive’s employment with shall, only to the Company shall not extent required by Code Section 409A, be deemed construed to have occurred for purposes of any provision of this Agreement providing for the payment of mean “deferred compensationSeparation from Service” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §409A and Section 1.409A-1(h409A(a)(2)(A)(i) of the Treasury Regulations and, for purposes of Code. To the extent any such provision of this agreement, references to a “separation,” “termination,” “termination of employment cash payment or like terms shall mean “continuing benefit payable upon Executive’s separation from service.” If the Executive service is a specified employee within the meaning of that term under nonqualified deferred compensation subject to Code §Section 409A, then with regard then, only to any payment that is considered non-qualified deferred compensation under the extent required by Code §409A and payable on account of a separation from serviceSection 409A, such payment or continuing benefit shall be made on not commence until the date which is the earlier of (i) the expiration of the six (6)-month period measured from 6) months and one day after the date of such separation from service, and (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits benefit payments under this Agreement constitute non-qualified deferred compensation for purposes of are subject to Code §Section 409A, such reimbursements and in-kind benefit payments shall be made in accordance with Section 1.409A-3(i)(l)(iv) of the Treasury Regulations (ias defined below) all (or any similar or successor provisions), and payments with respect to such expenses reimbursements or other reimbursements under this Agreement in-kind benefits shall be made on or prior to before the last day of the taxable calendar year following the taxable calendar year in which such expenses were incurred by the Executiverelevant expense is incurred. If under this Agreement, (ii) any right to such reimbursement an amount is paid in two or in kind benefits is not subject to liquidation or exchange more installments, for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §Section 409A, the Executive’s right to receive any each installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct paymentspayment. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for For purposes of this Agreement, (i) the “Code” shall mean the United States Internal Revenue Code §409A be subject of 1986, as amended, and (ii) “Treasury Regulations” shall mean all final regulations promulgated under the Code as from time to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.time in effect.

409A Compliance. This Agreement is intended to comply with or be exempt from Code §409A, and accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §409A and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean “separation from service.” If the Executive Employee is a specified employee within the meaning of that term under Code §409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such separation from service, and (ii) the date of the ExecutiveEmployee’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to the Executive Employee in a lump sum, and all remaining payments due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the ExecutiveEmployee, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §409A, the ExecutiveEmployee’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.

409A Compliance. This Agreement is intended to comply with or the short-term deferral rule under Treasury Regulation Section 1.409A-1(b)(4) and be exempt from Section 409A of the Internal Revenue Code §409Aof 1986, as amended (the “Code”), and accordinglyshall be construed and interpreted in accordance with such intent, provided that, if any severance provided at any time hereunder involves non-qualified deferred compensation within the meaning of Section 409A of the Code, it is intended to comply with the maximum extent permitted, this Agreement applicable rules with regard thereto and shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a accordingly. A termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement letter providing for the payment of “deferred compensation” (as such term is defined in §409A) any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A of the Code unless such termination is also a “separation from service” from the Company within the meaning of Code §Section 409A and Section 1.409A-1(h) of the Treasury Regulations Code and, for purposes of any such provision of this agreementletter, references to a “separation,” “termination,” “termination of employment employment” or like terms shall mean “separation from service.” If the Executive is deemed on the date of termination to be a “specified employee employee” within the meaning of that term under Code §409ASection 409A(a)(2)(B) of the Code, then with regard to any payment that is considered non-qualified deferred compensation under Section 409A of the Code §409A and payable on account of a “separation from service, ,” such payment or benefit shall be made on or provided at the date which is the earlier of (iA) the date that is immediately following the expiration of the six (6)-month period measured from the date of such Executive’s “separation from service”, and (iiB) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. ). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this paragraph (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and all any remaining payments and benefits due under this Agreement letter shall be paid or provided for in accordance with the normal payment dates specified for them herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §409ASection 409A of the Code, the Executive’s right to receive any installment payment payments pursuant to this Agreement letter shall be treated as a right to receive a series of separate and distinct payments. In no event shall may you, directly or indirectly, designate the calendar year of any payment to be made under this Agreement letter that constitutes is considered non-qualified deferred compensation compensation. In the event the time period for purposes considering any release and it becoming effective as a condition of Code §409A receiving severance shall overlap two calendar years, no amount of such severance shall be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.paid in the earlier calendar year.

409A Compliance. This Notwithstanding any other provisions of the Agreement is intended herein to the contrary and, to the extent applicable, the Agreement shall be interpreted, construed and administered (including with respect to any amendment, modification or termination of the Plan) in such manner so as to comply with or be exempt from the provisions of Section 409A of the Code §409Aand any related Internal Revenue Service guidance promulgated thereunder. All payments, and accordinglyincluding any transfers of Common Stock, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision made to the contrary, Employee upon a termination of employment with the Company shall not may only be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) made upon or following a termination of employment unless such termination is also a “separation from service” from the Company (within the meaning of Section 409A of the Code §409A and (“Section 1.409A-1(h409A”)) of the Treasury Regulations and, for Employee (“Separation from Service”). For purposes of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean “separation from service.” If the Executive is a specified employee within the meaning of that term under Code §Section 409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such separation from service, and (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to the Executive in a lump sum, and all remaining payments due each payment made under this Agreement shall be paid treated as a separate payment; (ii) the Employee may not, directly or provided for indirectly, designate the calendar year of payment; and (iii) no acceleration of the time and form of payment of any nonqualified deferred compensation to the Employee or any portion thereof, shall be permitted. Notwithstanding anything contained in accordance with this Agreement to the normal contrary, if at the time of the Employee’s Separation from Service, the Employee is a “specified employee” (within the meaning of Section 409A and the Company’s specified employee identification policy) and if any payment dates specified herein. To that constitutes nonqualified deferred compensation (within the meaning of Section 409A) is deemed to be triggered by the Employee’s Separation from Service, then, to the extent any reimbursements one or in-kind benefits more exceptions to Section 409A are inapplicable (including, without limitation, the exception under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (iTreasury Regulation Section 1.409A-1(b)(9)(iii) all such expenses or other reimbursements under this Agreement shall relating to separation pay due to an involuntary separation from service and its requirement that payments must be made on or prior to paid no later than the last day of the second taxable year following the taxable year in which such expenses were incurred by an employee incurs the Executiveinvoluntary separation from service), all payments that constitute nonqualified deferred compensation (within the meaning of Section 409A) to the Employee shall not be paid or provided to the Employee during the six-month period following the Employee’s Separation from Service, and (i) such postponed payment shall be paid to the Employee in a lump sum within thirty (30) days after the date that is six (6) months following the month of the Employee’s Separation from Service (or, if earlier, the date of the Employee’s death); and (ii) any right amounts payable to the Employee after the expiration of such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in6-kind benefits provided in any taxable year month period shall in any way affect the expenses eligible for reimbursement, or in-kind benefits continue to be provided, paid to the Employee in any other taxable year. For purposes accordance with the terms of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.Agreement.

409A Compliance. This The parties intend that payments under this Agreement is intended to comply with or be exempt from Code §Section 409A and the Company shall have complete discretion to interpret and construe this Agreement and any associated documents in any manner that establishes an exemption from (or compliance with) the requirements of Section 409A. If for any reason, such as imprecision in drafting, any provision of this Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Section 409A, as demonstrated by consistent interpretations or other evidence of intent, such provision shall be considered ambiguous as to its exemption from (or compliance with) Code Section 409A and accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be by the Company in compliance a manner consistent with or exempt from Code §409A. Notwithstanding any other provision to such intent, as determined in the contrary, a discretion of the Company. A termination of employment with the Company service shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “any amounts or benefits that are considered nonqualified deferred compensation” (as such term is defined in §409A) compensation subject to Code Section 409A upon or following a termination of employment Director’s services unless such termination is also constitutes a “separation from service,” from the Company within the meaning of Code §409A and Section 1.409A-1(h) of 409A, by Director from the Treasury Regulations and, for purposes of any such Company. Any provision of this agreementAgreement to the contrary notwithstanding, references to a “separation,” “termination,” “termination if at the time of employment or like terms shall mean “Director’s separation from service.” If , the Executive Company determines that Director is a “specified employee employee,” within the meaning of that term under Code §Section 409A, then with regard to the extent any payment that Director is entitled to under this Agreement on account of Director’s separation from service would be considered non-qualified nonqualified deferred compensation under Code §409A and payable on account of a separation from serviceSection 409A, such payment shall be made on paid at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such 6) months and one day after Director’s separation from service, service and (ii) the date of the ExecutiveDirector’s death (the “Delay Period”) to the extent required under Code §409A. ). Upon the expiration of the Delay Period, all payments delayed pursuant to this § 12 shall be paid to the Executive Director in a lump lump-sum, . The Company makes no representation or warranty and all remaining payments due under shall have no liability to Director or any other person if any provisions of this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits under this Agreement are determined to constitute non-qualified deferred compensation for purposes of subject to Code §Section 409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is but do not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursementsatisfy an exemption from, or in-kind benefits to be providedthe conditions of, in any other taxable year. For purposes of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §Section 409A.

409A Compliance. This (a) The parties agree that this Agreement is intended shall be interpreted to comply with or be exempt from Section 409A of the Internal Revenue Code §409Aof 1986, as amended (the “Code”), and accordingly, the regulations and guidance promulgated thereunder to the maximum extent permittedapplicable (collectively “Code Section 409A”), and all provisions of this Agreement shall be interpreted construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. In no event whatsoever will any member of the Company Group, or any of their respective affiliates or any directors, officers, agents, attorneys, employees, executives, shareholders, members, managers, trustees, fiduciaries, representatives, principals, accountants, insurers, successors or assigns of such member of the Company Group or such affiliate be liable for any additional tax, interest or penalties that may be imposed on you under Code Section 409A or any damages for failing to be in compliance comply with or exempt from Code §Section 409A. Notwithstanding any other provision to the contraryXxxx X. Xxxxxxx, a Xx. September 28, 2012 (b) A termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “nonqualified deferred compensation” (as such term is defined in §409A) under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Code §Section 409A and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this agreementAgreement, references to a “separation,” “termination,” “termination of employment employment” or like terms shall mean “separation from service.” If you are deemed on the Executive is Termination Date to be a “specified employee employee” within the meaning of that term under Code §409ASection 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered non-qualified nonqualified deferred compensation under Code §Section 409A and payable on account of a “separation from service, ,” such payment or benefit shall be made on or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such your “separation from service, ” and (ii) the date of the Executive’s your death (the “Delay Period”) to the extent required under Code §409A. ). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 9(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to the Executive you in a lump sum, and all any remaining payments and benefits due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified for them herein. To . (c) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the extent any reimbursements right to reimbursement or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall not be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and benefit, (iiiii) no such reimbursement, the amount of expenses eligible for reimbursement reimbursement, or in-kind benefits benefits, provided in during any taxable year shall in any way not affect the expenses eligible for reimbursement, or in-kind benefits benefits, to be provided, provided in any other taxable year; provided, that this clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of your taxable year following the taxable year in which the expense occurred. Xxxx X. Xxxxxxx, Xx. September 28, 2012 (d) For purposes of Code §Section 409A, the Executive’s your right to receive any installment payment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any Whenever a payment under this Agreement that constitutes non-qualified deferred compensation for purposes specifies a payment period with reference to a number of Code §409A days (e.g., “payment shall be subject to offsetmade within thirty (30) days following the Termination Date”), counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.the actual date of payment within the specified period shall be within the sole discretion of the Company.

409A Compliance. This Agreement is intended to comply with or be exempt from Code §409A, and accordingly, to To the maximum extent permitted, this Agreement shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement providing or action by the Company would subject the Employee to liability for interest or additional taxes under Section 409A of the payment of “deferred compensation” (as Code, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Company. It is intended that this Agreement will comply with Code Section 409A and the interpretive guidance thereunder, including the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind distributions, and this Agreement shall be administered accordingly, and interpreted and construed on a basis consistent with such term is defined intent. All references in §409A) upon or following a this Agreement to the Employee’s termination of employment unless such termination is also shall mean a “separation from service” from the Company within the meaning of Code §Section 409A and Treasury Regulation Section 1.409A-1(h) 1.409A-1(h)(l)(ii). Notwithstanding anything to the contrary herein, if the Employee is a “specified employee” as defined in Code Section 409A, any portion of the Treasury Regulations and, for purposes amounts payable under this Agreement as a result of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment that are not eligible for any of the exceptions to the application of Code Section 409A (such as the severance pay exception or like terms the short-term deferral exception), shall mean “separation from service.” If not be paid to the Executive is a specified employee within the meaning of that term under Code §409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is Employee until the earlier of (i) the expiration of the six (6)-month period measured from the date of such the Employee’s “separation from service, and ” or (ii) the date Employee’s death. Any series of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed hereunder shall be paid to the Executive in considered a lump sum, and all remaining series of separate payments due under this Agreement shall be paid or provided for in accordance with the normal payment dates specified herein. purposes of Code Section 409A. To the extent any reimbursements or in-kind benefits benefit payments under this Agreement constitute non-qualified deferred compensation for purposes of are subject to Code §Section 409A, such reimbursements and in-kind benefit payments shall be made in accordance with Treasury Regulation §1.409A-3(i)(l)(iv) (ior any similar or successor provisions). This Agreement may be amended to the extent necessary (including retroactively) all such expenses by the Company in order to preserve compliance with Code Section 409A. The preceding shall not be construed as a guarantee of any particular tax effect for the Employee’s compensation and benefits and the Company does not guarantee that any compensation or other reimbursements benefits provided under this Agreement shall be made on or prior to will satisfy the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes provisions of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §Section 409A.

409A Compliance. This Agreement is intended to comply with or the short-term deferral rule under Treasury Regulation Section 1.409A-1(b)(4) and be exempt from Code §409ASection 409A of the Code, and accordinglyshall be construed and interpreted in accordance with such intent, provided that, if any severance provided at any time hereunder involves non-qualified deferred compensation within the meaning of Section 409A of the Code, it is intended to comply with the maximum extent permitted, this Agreement applicable rules with regard thereto and shall be interpreted to be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a accordingly. A termination of employment with the Company shall not be deemed to have occurred for purposes of any provision of this Agreement letter providing for the payment of “deferred compensation” (as such term is defined in §409A) any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A of the Code unless such termination is also a “separation from service” from the Company within the meaning of Code §Section 409A and Section 1.409A-1(h) of the Treasury Regulations Code and, for purposes of any such provision of this agreementletter, references to a “separation,” “termination,” “termination of employment employment” or like terms shall mean “separation from service.” If you are deemed on the Executive is date of termination to be a “specified employee employee” within the meaning of that term under Code §409ASection 409A(a)(2)(B) of the Code, then with regard to any payment that is considered non-qualified deferred compensation under Section 409A of the Code §409A and payable on account of a “separation from service, ,” such payment or benefit shall be made on or provided at the date which is the earlier of (iA) the date that is immediately following the expiration of the six (6)-month period measured from the date of such your “separation from service”, and (iiB) the date of the Executive’s your death (the “Delay Period”) to the extent required under Code §409A. ). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this paragraph (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive you in a lump sum, and all any remaining payments and benefits due under this Agreement letter shall be paid or provided for in accordance with the normal payment dates specified for them herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code §409ASection 409A of the Code, the Executive’s your right to receive any installment payment payments pursuant to this Agreement letter shall be treated as a right to receive a series of separate and distinct payments. In no event shall may you, directly or indirectly, designate the calendar year of any payment to be made under this Agreement letter that constitutes is considered non-qualified deferred compensation compensation. In the event the time period for purposes considering any release and it becoming effective as a condition of Code §409A receiving severance shall overlap two calendar years, no amount of such severance shall be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.paid in the earlier calendar year.

409A Compliance. This Notwithstanding any provisions of the Plan or this Agreement is intended to comply with or be exempt from Code §409A, and accordinglythe contrary and, to the maximum extent permittedapplicable, the Plan and this Agreement shall be interpreted interpreted, construed and administered (including with respect to any amendment, modification or termination of the Plan or this Agreement) in such a manner so as to comply with the provisions of Section 409A of the Code, as amended, and any related Internal Revenue Service guidance promulgated thereunder. All payments to be in compliance with or exempt from Code §409A. Notwithstanding any other provision made to the contrary, Employee upon a termination of employment with the Company shall not may only be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) made upon or following a termination of employment unless such termination is also a “separation from service” from the Company (within the meaning of Section 409A of the Code §409A and (“Section 1.409A-1(h409A”)) of the Treasury Regulations and, for Employee (“Separation from Service”). For purposes of any such provision of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean “separation from service.” If the Executive is a specified employee within the meaning of that term under Code §Section 409A, then with regard to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such separation from service, and (ii) the date of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to the Executive in a lump sum, and all remaining payments due each payment made under this Agreement shall be paid treated as a separate payment; (ii) the Employee may not, directly or provided for indirectly, designate the calendar year of payment; and (iii) no acceleration of the time and form of payment of any nonqualified deferred compensation to the Employee or any portion thereof, shall be permitted. Notwithstanding anything contained in accordance with this Agreement to the normal contrary, if at the time of the Employee’s Separation from Service, the Employee is a “specified employee” (within the meaning of Section 409A and the Company’s specified employee identification policy) and if any payment dates specified herein. To that constitutes nonqualified deferred compensation (within the meaning of Section 409A) is deemed to be triggered by the Employee’s Separation from Service, then, to the extent any reimbursements one or in-kind benefits more exceptions to Section 409A are inapplicable (including, without limitation, the exception under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (iTreasury Regulation Section 1.409A-1(b)(9)(iii) all such expenses or other reimbursements under this Agreement shall relating to separation pay due to an involuntary separation from service and its requirement that payments must be made on or prior to paid no later than the last day of the second taxable year following the taxable year in which such expenses were incurred by an employee incurs the Executiveinvoluntary separation from service), all payments that constitute nonqualified deferred compensation (within the meaning of Section 409A) to the Employee shall not be paid or provided to the Employee during the six-month period following the Employee’s Separation from Service, and (i) such postponed payment shall be paid to the Employee in a lump sum within thirty (30) days after the date that is six (6) months following the month of the Employee’s Separation from Service (or, if earlier, the date of the Employee’s death); and (ii) any right amounts payable to the Employee after the expiration of such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in6-kind benefits provided in any taxable year month period shall in any way affect the expenses eligible for reimbursement, or in-kind benefits continue to be provided, paid to the Employee in any other taxable year. For purposes accordance with the terms of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.Agreement.

409A Compliance. This Agreement is intended to comply with with, or be exempt from from, the applicable requirements of Section 409A of the Code §409A, and accordingly, to the maximum extent permitted, this Agreement rules and regulations issued thereunder and shall be interpreted to administered accordingly. Executive shall be in compliance with or exempt from Code §409A. Notwithstanding any other provision to the contrary, a termination of employment with the Company shall not be deemed considered to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in §409A) upon or following a termination of employment unless such termination is also incurred a “separation from service” from the Company with Apache and its affiliates within the meaning of Code §409A and Section 1.409A-1(hTreas. Reg. § 1.409A-1(h)(1)(ii) as of the Treasury Regulations andRetirement Date, for purposes and Apache and Executive reasonably anticipate that the level of services performed after the Retirement Date shall permanently decrease to less than twenty (20) percent of the average level of services performed over the thirty-six (36) month period immediately preceding the Retirement Date. Notwithstanding any such other provision in this Agreement to the contrary, on the date of this agreement, references to a “separation,” “termination,” “termination of employment or like terms shall mean Executive’s “separation from service.” If the Executive is a specified employee within the meaning of that term under Code §Section 409A of the Code, if Executive is a “specified employee” (as defined in Section 409A), then with regard payments and benefits payable under this Agreement due to any payment that is considered non-qualified deferred compensation under Code §409A and payable on account of a “separation from service, such payment shall be made on ” within the date which is the earlier meaning of (i) the expiration Section 409A of the six Code that are deferred compensation subject to (6)-month period measured from the date of such separation from service, and (iinot otherwise exempt from) the date Section 409A of the Executive’s death (the “Delay Period”) to the extent required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to the Executive in a lump sum, and all remaining payments due under this Agreement shall that would otherwise be paid or provided for in accordance with during the normal payment dates specified herein. To six-month period commencing on the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes date of Code §409AExecutive’s “separation from service” within the meaning of Section 409A of the Code, (i) all such expenses or other reimbursements under this Agreement shall be made settled on the 409A Payment Date, or prior later, if so provided under the terms of this Agreement. If Executive dies during the six-month delay, the Separation Payments shall be settled and paid to Executive’s designated beneficiary, legal representatives, heirs or legatees, as applicable, as soon as practicable after the last day date of death, or such later date as is provided under the terms of this Agreement. This Agreement may be amended without the consent of Executive in any respect deemed by Apache to be necessary in order to preserve compliance with Section 409A of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable yearCode. For purposes of Code §409A, the Executive’s right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event shall any payment under this Agreement that constitutes non-qualified deferred compensation for purposes of Code §409A be subject to offset, counterclaim or recoupment by any other amount unless otherwise permitted by Code §409A.[Execution Page Follows]