Common use of 409A Clause in Contracts

409A. To the maximum extent permitted, this Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code Section 409A (“Section 409A”) but in any event will be interpreted to comply with Section 409A. In the event this Agreement or any benefit paid under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents to the Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreement, a termination of employment means a “separation from service” as defined in Section 409A. Each payment made pursuant to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Section 409A, the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business day of the seventh month following Employee’s “separation from service,” or (ii) ten (10) days after the Company receives written confirmation of Employee’s death. Any such delayed payments shall be made without interest.

409A. To the maximum extent permitted, this Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code Section 409A (“Section 409A”a) but in Notwithstanding any event will be interpreted to comply with Section 409A. In the event this Agreement or any benefit paid under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents other provision to the Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreementcontrary, a termination of employment means 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 Section 409A of the Code and the Treasury Regulations promulgated thereunder) upon or following a termination of employment unless such termination is also a “separation from service” as defined in from the Company within the meaning of Section 409A. Each payment made pursuant to 409A of the Code 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.” (b) Notwithstanding any other provision to the contrary, in no event shall any payment under this Agreement shall be considered a separate payment and not one of a series of payments that constitutes “deferred compensation” for purposes of Section 409A. 409A of the Code and the Treasury Regulations promulgated thereunder be subject to offset by any other amount unless otherwise permitted by Section 409A of the Code. (c) For the avoidance of doubt, any payment due under this Agreement within a period following the Executive’s termination of employment or other event, shall be made on a date during such period as determined by the Company in its sole discretion. (d) It is intended that the Agreement, to the extent practicable, comply and be interpreted in accordance with Section 409A of the Code, and the Company shall, as necessary, adopt such conforming amendments as are necessary to comply with Section 409A of the Code without reducing the benefits payable hereunder without the express written consent of the Executive. (e) To the extent that any nonqualified deferred compensation payment to Employee could be paid reimbursement, fringe benefit or other, similar plan or arrangement in one which the Executive participates during the term of Executive’s employment under this Agreement or more thereafter provides for a “deferral of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from servicecompensation” within the meaning of Section 409A409A of the Code, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Section 409A, the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), (ii) subject to any shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the seventh month calendar year following Employee’s “separation from service,” the calendar year in which the expense was incurred; and (iii) any such reimbursement or payment may not be subject to liquidation or exchange for another benefit, all in accordance with Section 1.409A-3(i)(1)(iv) of the Treasury Regulations. (f) By accepting this Agreement, the Executive hereby agrees and acknowledges that the Company does not make any representations with respect to the application of Section 409A of the Code to any tax, economic or legal consequences of any payments payable to the Executive hereunder. Further, by the acceptance of this Agreement, the Executive acknowledges that (i) the Executive has obtained independent tax advice regarding the application of Section 409A of the Code to the payments due to the Executive hereunder, (ii) ten the Executive retains full responsibility for the potential application of Section 409A of the Code to the tax and legal consequences of payments payable to the Executive hereunder and (10iii) days after the Company receives written confirmation shall not indemnify or otherwise compensate the Executive for any violation of Employee’s death. Any such delayed payments shall be made without interestSection 409A of the Code that my occur in connection with this Agreement.

409A. To (a) Notwithstanding anything herein to the maximum extent permittedcontrary, this Agreement is intended to not constitute a “nonqualified deferred be interpreted and applied so that the payment of the compensation plan” within and benefits set forth herein either shall either be exempt from the meaning requirements of Internal Revenue Code Section 409A (“Section 409A”) but in any event will be interpreted to of the Internal Revenue Code of 1986, as amended (the “Code”) or shall comply with Section 409A. In the event this Agreement or requirements of such provision. (b) Notwithstanding any benefit paid under provision of this Agreement to Employee the contrary, if the Executive is deemed to be subject to a “specified employee” within the meaning of Section 409A, Employee consents to any payments or arrangements due upon or following a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the Company’s adoption meaning of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid shall be delayed and paid or provided, without interest, on the imposition earlier of taxes under Section 409A. For purposes of this Agreement, a termination of employment means a (i) the first business day after the date which is six months after Executive’s “separation from service” (as such term is defined in Section 409A. Each payment made pursuant to 409A and the regulations and other published guidance thereunder) for any provision reason other than death, and (ii) the date of this Agreement Executive’s death. (c) After the Executive’s termination of employment, the Executive shall be considered have no duties or responsibilities that are inconsistent with having a separate payment and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from service” within the meaning of Section 409A409A and, Employee is then a “specified employee” (as defined notwithstanding anything in Section 409A), then solely the Agreement to the extent necessary to comply with Section 409A and avoid the imposition contrary, distributions upon termination of taxes under Section 409A, the Company shall defer payment employment of “nonqualified deferred compensation” subject to Section 409A payable as compensation may only be made upon a result of and within six (6) months following such “separation from service” until as determined under Section 409A and such date shall be the earlier Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise shall be treated as a separate payment for purposes of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid shall be in the discretion of the Employer. (id) Notwithstanding any other provision of this Agreement to the contrary, in the event, and to the extent that, the provision or reimbursement of costs incurred in connection with any post-termination welfare benefits provided under this Agreement results in the deferral of compensation within the meaning of Section 409A of the Code because the benefits are outside the scope of Section 1.409A-l(b)(9)(v) of the Treasury Regulations and result in the deferral of compensation within the meaning of Section 409A of the Code, then the reimbursement or provision of such benefits shall be subject to the requirements of Section lA09A-3(i)(1)(iv) of the Treasury Regulations, and (1) reimbursements or benefits shall be provided only during the applicable period specified in the Agreement, (2) the first business day amount of expenses eligible for reimbursement or the benefits provided in kind during a particular calendar year shall not affect the expenses eligible for reimbursement or the in kind benefits to be provided in any other calendar year, (3) the reimbursement of any eligible expense shall be made on or before December 31 of the seventh month year following Employee’s “separation from service,” or the year in which the expense was incurred provided reasonable documentation of such expense is submitted to the Company within ninety (ii) ten (1090) days after the Company receives written confirmation date any such expense was incurred, and (4) the Executive’s right to reimbursement or the provision of Employee’s death. Any such delayed payments in-kind benefits shall not be made without interestsubject to liquidation or exchange for another benefit.

409A. To the maximum extent permitted, this Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code Section 409A (“Section 409A”a) but in Notwithstanding any event will be interpreted to comply with Section 409A. In the event this Agreement or any benefit paid under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents other provision to the Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreementcontrary, a termination of employment means 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 Section 409A of the Code and the Treasury Regulations promulgated thereunder) upon or following a termination of employment unless such termination is also a “separation from service” as defined in Section 409A. Each payment made pursuant to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To from the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from service” Company within the meaning of Section 409A409A of the Code and Section 1.409A-1(h) of the Treasury Regulations and, Employee is then for purposes of any such provision of this Agreement, references to a “specified employeeseparation,” “termination,” “termination of employment” or like terms shall mean “separation from service.” (b) Notwithstanding any other provision to the contrary, in no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Section 409A of the Code and the Treasury Regulations promulgated thereunder be subject to offset by any other amount unless otherwise permitted by Section 409A of the Code. (c) For the avoidance of doubt, any payment due under this Agreement within a period following Executive’s termination of employment, death, Disability or other event, shall be made on a date during such period as defined determined by the Company in Section 409A)its sole discretion. (d) It is intended that the Agreement, then solely to the extent practicable, comply and be interpreted in accordance with Section 409A of the Code, and the Company shall, as necessary, adopt such conforming amendments as are necessary to comply with Section 409A and avoid the imposition of taxes under Section 409A, the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business day of the seventh month following Code without reducing the benefits payable hereunder without the express written consent of the Employee’s “separation from service,” or (ii) ten (10) days after the Company receives written confirmation of Employee’s death. Any such delayed payments shall be made without interest.

409A. To the maximum extent permitted, It is intended that this Agreement is intended to not constitute a “nonqualified deferred compensation plan” within will comply with, or be exempt from, Sections 409A and 457A of the meaning of Internal Revenue Code Section 409A of 1986, as amended (the “Section 409ACode”) but in and any event will regulations and guidelines issued thereunder, to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. Except in the event of the Company’s failure to comply with Section 409A. In the event this Agreement or any benefit paid under this Agreement to Employee is deemed to be subject to Section 409Aits obligations, Employee consents to the Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an shall not have any obligation to do so), indemnify or otherwise protect the Executive from any obligation to comply with Section 409A and avoid the imposition of pay any taxes under Section 409A. For purposes of this Agreement, a termination of employment means a “separation from service” as defined in Section 409A. Each payment made pursuant to Sections 409A or 457A of the Code. With respect to any provision reimbursement or in-kind benefit arrangements of this Agreement shall be considered a separate payment the Company and not one of a series of payments its subsidiaries that constitute deferred compensation for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from service” within the meaning of Section 409A, Employee is then a “specified employee” (except as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under otherwise permitted by Section 409A, the Company following conditions shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of be applicable: (i) the first business amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a limit on the amount that may be reimbursed or paid), (ii) any reimbursement must be made on or before the last day of the seventh month calendar year following Employee’s “separation from service,” the calendar year in which the expense was incurred, and (iii) the right to reimbursement or (ii) ten (10) days after the Company receives written confirmation of Employee’s deathin-kind benefits is not subject to liquidation or exchange for another benefit. Any Whenever payments under this Agreement are to be made in installments, each such delayed payments installment shall be made without interest.deemed to be a separate payment for purposes of Section 409A.

409A. To the maximum extent permitted, this This Agreement is intended to not constitute a “nonqualified deferred compensation plan” within provide payments that are exempt from and/or that comply with the meaning provisions of Section 409A of the Internal Revenue Code Section 409A of 1986, as amended (the “Code”) and related regulations and Treasury pronouncements (“Section 409A”) but in any event will ), and this Agreement shall be interpreted to comply with accordingly (it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A. In 409A and the event applicable policies and guidelines of the Company). If any provision of this Agreement or would cause Employee to incur any benefit paid additional tax under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the Company’s adoption extent possible, the original intent of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but applicable provision without an obligation to do so), to comply with Section 409A and avoid violating the imposition provisions of taxes under Section 409A. For purposes Notwithstanding anything herein to the contrary, if on the date of this Agreement, a termination of employment means Employee’s separation from service Employee is a “separation from servicespecified employee,” as defined in Section 409A. Each payment made pursuant to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions409A, then any such payments will commence portion of any payments, benefits or occur in the later taxable year other consideration under this Agreement that are determined to be subject to the extent additional tax provided by Section 409A(a)(1)(B) of the Code if not delayed as required by Section 409A. If upon Employee’s “separation from service” within 409A(a)(2)(B)(i) of the meaning of Section 409A, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Section 409A, the Company Code shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” be delayed until the earlier of first (i1st) the first business day of the seventh (7th) month following Employee’s “separation from service,” or service date (iior, if earlier, Employee’s date of death) ten (10) days after and shall be paid as a lump sum on such date. Employee acknowledges and agrees that Employee has obtained no advice from the Company receives written confirmation or any of its affiliates, or any of their respective officers, directors, employees, subsidiaries, affiliates, agents, attorneys or other representatives, and that none of such persons or entities have made any representation regarding the tax consequences, if any, of Employee’s deathreceipt of the payments, benefits and other consideration provided for in this Agreement. Any such delayed Employee further acknowledges and agrees that Employee is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments shall be and other consideration received by Employee under this Agreement. Employee agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Employee is, or may become, obligated to pay on account of any payments made without interestand other consideration provided to Employee under this Agreement.

409A. To the maximum extent permitted, this Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code Section 409A (“Section 409A”a) but in Notwithstanding any event will be interpreted to comply with Section 409A. In the event this Agreement or any benefit paid under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents other provision to the Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreementcontrary, a termination of employment means 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 Section 409A of the Code and the Treasury Regulations promulgated thereunder) upon or following a termination of employment unless such termination is also a “separation from service” as defined in from the Company within the meaning of Section 409A. Each payment made pursuant to 409A of the Code 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.” (b) Notwithstanding any other provision to the contrary, in no event shall any payment under this Agreement shall be considered a separate payment and not one of a series of payments that constitutes “deferred compensation” for purposes of Section 409A. 409A of the Code and the Treasury Regulations promulgated thereunder be subject to offset by any other amount unless otherwise permitted by Section 409A of the Code. (c) For the avoidance of doubt, any payment due under this Agreement within a period following the Executive’s termination of employment or other event, shall be made on a date during such period as determined by the Company in its sole discretion. (d) It is intended that the Agreement, to the extent practicable, comply and be interpreted in accordance with Section 409A of the Code, and the Company shall, as necessary, adopt such conforming amendments as are necessary to comply with Section 409A of the Code without reducing the benefits payable hereunder without the express written consent of the Executive. (e) To the extent that any nonqualified deferred compensation payment to Employee could be paid reimbursement, fringe benefit or other, similar plan or arrangement in one which the Executive participates during the term of Executive’s employment under this Agreement or more thereafter provides for a “deferral of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from servicecompensation” within the meaning of Section 409A409A of the Code, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Section 409A, the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), (ii) subject to any shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the seventh month calendar year following Employee’s “separation from service,” the calendar year in which the expense was incurred; and (iii) any such reimbursement or payment may not be subject to liquidation or exchange for another benefit, all in accordance with Section 1.409A-3(i)(1)(iv) of the Treasury Regulations. (f) By accepting this Agreement, the Executive hereby agrees and acknowledges that the Company does not make any representations with respect to the application of Section 409A of the Code to any tax, economic or legal consequences of any payments payable to the Executive hereunder. Further, by the acceptance of this Agreement, the Executive acknowledges that (i) the Executive has obtained independent tax advice regarding the application of Section 409A of the Code to the payments due to the Executive hereunder, (ii) ten the Executive retains full responsibility for the potential application of Section 409A of the Code to the tax and legal consequences of payments payable to the Executive hereunder and (10iii) days after the Company receives written confirmation shall not indemnify or otherwise compensate the Executive for any violation of Employee’s deathSection 409A of the Code that my occur in connection with this Agreement. Any such delayed payments shall be made without interest.[Signature Page Follows] Blue Nile Health123

409A. To the maximum extent permitted, this This Agreement is intended to not constitute provide payments that are exempt from and/or that comply with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and related regulations and Treasury pronouncements (“Section 409A”), and this Agreement shall be interpreted accordingly (it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause Employee to incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a “nonqualified deferred compensation planseparate payment” within the meaning of Internal Revenue Code Section 409A (“Section 409A”) but in any event will be interpreted to comply with the Section 409A. In the event this Agreement or any benefit paid under this Agreement All references herein to Employee is deemed to be subject to Section 409A, Employee consents to the CompanyEmployee’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreement, a “termination of employment means a “separation from serviceemployment” as defined in Section 409A. Each payment made pursuant or other similar term shall refer to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from service” within the meaning of Section 409A409A and Treas. Reg. Section 1.409A-1(h). Notwithstanding anything herein to the contrary, if on the date of Employee’s separation from service Employee is then a “specified employee,” (as defined in Section 409A), then solely any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the extent necessary to comply with additional tax provided by Section 409A and avoid 409A(a)(1)(B) of the imposition Code if not delayed as required by Section 409A(a)(2)(B)(i) of taxes under Section 409A, the Company Code shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” be delayed until the earlier of first (i1st) the first business day of the seventh (7th) month following Employee’s separation from service date (or, if earlier, Employee’s date of death), and the total of such delayed amounts shall be paid as a lump sum on such date. For purposes of clarification, any portion of any separation allowance or other payment due to Employee under this Agreement that is not considered deferred compensation under Section 409A through either the “short-term deferral” exception pursuant to Treasury Reg. 1.409A-1(b)(4) or the “separation from service,pay” exception pursuant to Treasury Reg. 1.409A-1(b)(9) will not be subject to the 6 month delay described in this paragraph as provided under Section 409A. With respect to any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that constitutes a “deferral of compensation” within the meaning of Section 409A, (i) the expenses eligible for reimbursement or in-kind benefits provided to Employee must be incurred during the Employment Period (or applicable survival period), (ii) ten the amount of expenses eligible for reimbursement or in-kind benefits provided to Employee during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Employee in any other calendar year, (10iii) days after the reimbursements for expenses for which Employee is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (iv) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Employee acknowledges and agrees that Employee has obtained no advice from the Company receives written confirmation or any of its affiliates, or any of their respective officers, directors, employees, subsidiaries, affiliates, agents, attorneys or other representatives, and that none of such persons or entities have made any representation regarding the tax consequences, if any, of Employee’s deathreceipt of the payments, benefits and other consideration provided for in this Agreement. Any such delayed Employee further acknowledges and agrees that Employee is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments shall be and other consideration received by Employee under this Agreement. Employee agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Employee is, or may become, obligated to pay on account of any payments made without interestand other consideration provided to Employee under this Agreement.

409A. To the maximum extent permitted, this Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code Section 409A (“Section 409A”a) but in Notwithstanding any event will be interpreted to comply with Section 409A. In the event this Agreement or any benefit paid under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents other provision to the Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreementcontrary, a termination of employment means 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 Section 409A of the Code and the Treasury Regulations promulgated thereunder) upon or following a termination of employment unless such termination is also a “separation from service” as defined in from the Company within the meaning of Section 409A. Each payment made pursuant to 409A of the Code 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.” (b) Notwithstanding any other provision to the contrary, in no event shall any payment under this Agreement shall be considered a separate payment and not one of a series of payments that constitutes “deferred compensation” for purposes of Section 409A. 409A of the Code and the Treasury Regulations promulgated thereunder be subject to offset by any other amount unless otherwise permitted by Section 409A of the Code. (c) For the avoidance of doubt, any payment due under this Agreement within a period following the Executive’s termination of employment or other event, shall be made on a date during such period as determined by the Company in its sole discretion. (d) It is intended that the Agreement, to the extent practicable, comply and be interpreted in accordance with Section 409A of the Code, and the Company shall, as necessary, adopt such conforming amendments as are necessary to comply with Section 409A of the Code without reducing the benefits payable hereunder without the express written consent of the Executive. (e) To the extent that any nonqualified deferred compensation payment to Employee could be paid reimbursement, fringe benefit or other, similar plan or arrangement in one which the Executive participates during the term of Executive’s employment under this Agreement or more thereafter provides for a “deferral of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from servicecompensation” within the meaning of Section 409A409A of the Code, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Section 409A, the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), (ii) subject to any shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the seventh month calendar year following Employee’s “separation from service,” the calendar year in which the expense was incurred; and (iii) any such reimbursement or payment may not be subject to liquidation or exchange for another benefit, all in accordance with Section 1.409A-3(i)(1)(iv) of the Treasury Regulations. (f) By accepting this Agreement, the Executive hereby agrees and acknowledges that the Company does not make any representations with respect to the application of Section 409A of the Code to any tax, economic or legal consequences of any payments payable to the Executive hereunder. Further, by the acceptance of this Agreement, the Executive acknowledges that (i) the Executive has obtained independent tax advice regarding the application of Section 409A of the Code to the payments due to the Executive hereunder, (ii) ten the Executive retains full responsibility for the potential application of Section 409A of the Code to the tax and legal consequences of payments payable to the Executive hereunder and (10iii) days after the Company receives written confirmation shall not indemnify or otherwise compensate the Executive for any violation of Employee’s deathSection 409A of the Code that my occur in connection with this Agreement. Any such delayed payments shall be made without interest.[Signature Page Follows]