Common use of 409A Clause in Contracts

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month period.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation All payments and benefits hereunder are subject to withholding of applicable income and employment taxes. The parties agree that this letter shall be interpreted to comply with or be exempt from Section 409A of the Internal Revenue Code (as it has been and may be amended from time to time) and any regulations and guidance that has been promulgated or may be promulgated from time to time thereunder at the time of 1986, as amended your termination (“CodeSection 409A”) shall ), so that none of the severance payments or benefits provided hereunder will be paid and provided in a mannersubject to the additional tax imposed under Section 409A, and at such time and form, as complies with the applicable requirements of Section 409A of the Code any ambiguities or ambiguous terms herein will be interpreted to avoid the unfavorable tax consequences provided therein for non-complianceso comply or be so exempt. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for For purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments determining entitlement to severance benefits that could otherwise be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A 409A, a termination of the Code employment shall not be made until deemed to have occurred unless the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean is also a “separation from service” within the meaning of Section 409A. Notwithstanding anything to the contrary in this letter, if you are a “specified employee” within the meaning of Section 409A, then the severance and any other separation benefits payable to you upon your separation from service (whether under this letter or otherwise) to the extent that the same constitute deferred compensation under Section 409A (the “Deferred Payments”), otherwise due to you on or within the six (6)-month period following your separation from service will accrue during such six (6)-month period and will become payable in a lump sum payment on the date six (6) months and one (1) day following the date of your termination (such rule, the “Six Month Delay Rule”) or, if earlier, the date of your death. All subsequent Deferred Payments following the application of the Code where it Six Month Delay Rule, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit or, if earlier, upon the date of your death. Each payment and benefit payable under this Letter is reasonably anticipated that no further services would be performed after such date or that the level intended to constitute a separate payment for purposes of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%Section 1.409A-2(b)(2) of the average level of bona fide services Treasury Regulations. In no event will the Executive performed over the immediately preceding thirty-six (36) month period.Company or its successor reimburse or indemnify you for any taxes or other obligations that may arise under Section 409A.

409A. It is The terms of this Agreement (and the terms of any and all other agreements which cover you and are deferred compensation plans subject to Code Section 409A) are intended that to be, and shall be interpreted so as to, comply with Code Section 409A so as to not subject you to any excise tax or penalty under Code Section 409A by virtue of any payment or benefit related to that agreement. In the event it is provided pursuant to determined that any term or in connection with provision of this Agreement (and/or of any other agreements covering you which are subject to Code Section 409A) does not so comply with Code Section 409A, then any and all such non-compliant terms or provisions are amended so as to delay payments and benefits (of whatever kind, including stock options, dividends and any other equity-related payments that is considered may be subject to be deferred compensation subject Code Section 409A) in a manner that will comply with all of the following three requirements: (1) conform to Section 409A of the Internal Revenue Code of 1986, as amended Code; (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(42) to the extent possible under Code Section 409A, preserve the original intent of that all provision; and (3) otherwise be without any reduction in the amount of such payments are payable no later than two and a half months after the end or benefits ultimately paid or provided to you. Without limitation of the first taxable year in which the right to the payment is no longer subject to foregoing, if you are a substantial risk of forfeiture. a. If the Executive is a “‘specified employee” for purposes of ’ under Code Section 409A(a)(2)(B)(i) of the 409A(a)(2)(B), then, except as permitted by Code at such timeSection 409A, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Code Section 409A of the Code shall not will be made delayed until the later of (i) eighteen months following the Effective Date or (ii) date that is six months plus one day after the Executive’s Separation your separation from Service service (the “409A Deferral Suspension Period”) as required by Section 409A of the Code), provided that the payment of and any such deferred compensation may payments or benefits to which you would otherwise be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically entitled during the 409A Deferral Period shall first six months after your separation from service will be accumulated and paid in a lump sum as soon as or provided on the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts date that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed six months after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month periodseparation form service.

409A. It This Agreement is intended that any payment or benefit that is provided pursuant to or in connection comply with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986Code, as amended (“Code”) shall where applicable, and will be paid interpreted and provided applied in a mannermanner consistent with that intention. Toward that end, and at such time and formunless permitted sooner by Section 409A of the Code, if the Executive is designated as complies with a “Specified Employee” as of the applicable requirements date of his “Separation from Service,” the payment of amounts that are treated as deferred compensation for purposes of Section 409A of the Code to avoid and are payable solely on account of the unfavorable tax consequences provided therein for nonExecutive’s Separation from Service that would otherwise be paid during the six-compliancemonth period following the Executive’s Separation from Service will be deferred until and become payable on the first day of the seventh month following such Separation from Service. It is further intended that For purposes hereof, the terms “Specified Employee” and “Separation from Service” will have the same meanings as such terms under Section 409A of the Code and the regulations thereunder. If other payments hereunder shall, of money or other benefits due to the maximum extent permissible Executive under this Agreement or otherwise would cause the application of an accelerated or additional tax under Section 409A of the Code, the payments or other benefits will be exempt from deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits will be restructured, to the extent possible, in a manner that does not cause such an accelerated or additional tax or result in a material additional cost to the Company. If, after the application of the preceding paragraph, in the event that it is determined that any payment, coverage or benefit due or owing to the Executive pursuant to this Agreement is subject to the excise tax imposed by Section 409A of the Code or any successor provision thereof or any interest or penalties, including interest imposed under either (iSection 409A(1)(B)(i)(I) of the exception for involuntary separation Code, incurred by the Executive as a result of the application of such provision, the Employers, within 30 days thereafter, shall pay to the extent Executive, in addition to any other payment, coverage or benefit due and owing under this Agreement, an amount (the “409A Payment”) that all payments are payable within will result in the limitations described in Treasury Regulation Executive's net after tax position, after taking into account any interest, penalties or taxes imposed on the amounts paid under this Section 1.409A-1(b)(96(b), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) being no less advantageous to the extent that all payments are payable no later Executive than two and a half months the net after the end of the first taxable year in which the right tax position to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to would have been obtained had Section 409A of the Code shall not been applicable to such payment, coverage or benefits. The amount of the 409A Payment will be made until calculated by the later Employer’s independent accounting firm, in consultation with the Employer’s outside legal counsel. For purposes of (i) eighteen months following making the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as calculations required by this Section, the accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executiveaccounting firm’s death. Payments of any such deferred compensation otherwise due to determinations must be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” substantial authority (within the meaning of Section 409A 6662 of the Code where Code). If the precise amount of the 409A Payment cannot be determined on the date it is reasonably anticipated to be paid, an amount equal to the best estimate of the 409A Payment will be made on that no further services would be performed date and, within 10 days after such date or that the level of bona fide services precise calculation is obtained, either the Employers will pay any additional amount to the Executive would perform after or the Executive will pay any excess amount to the Employers, as the case may be. If subsequently the IRS claims that date (whether as any additional amounts are owing, an employee or independent contractor) would permanently decrease additional 409A Payment will be paid to a level less than or equal to twenty percent (20%) the Executive within 30 days of the average level Executive providing substantiation of bona fide services the claim made by the IRS. After payment to the Executive performed over of the immediately preceding thirty409A Payment, the Executive will provide to the Employers any information reasonably requested by the Employers relating to the tax and penalties, the Executive will take those actions as the Employers reasonably requests to contest the tax and penalties, cooperate in good faith with the Employers to effectively contest the tax and penalties and permit the Employers to participate in any proceedings contesting the tax and penalties. The Employers will bear and pay directly all costs and expenses (including any interest or additional penalties), and indemnify and hold the Executive harmless, on an after-six (36) month periodtax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any amount of the tax or penalties are not properly owed, the Executive will refund to the Employers the related amount of the 409A Payment.

409A. It is The terms of this Agreement (and the terms of any and all other agreements which cover you and are deferred compensation plans subject to Code Section 409A) are intended that to comply, and shall be interpreted so as to comply, with Code Section 409A so as to not subject you to any excise tax or penalty under Code Section 409A by virtue of any payment or benefit related to that agreement. In the event it is provided pursuant to determined that any term or in connection with provision of this Agreement (and/or of any other agreements covering you which are subject to Code Section 409A) does not so comply with Code Section 409A, then any and all such non-compliant terms or provisions are amended so as to delay payments and benefits (of whatever kind, including stock options, dividends and any other equity-related payments that is considered may be subject to be deferred compensation subject Code Section 409A) in a manner that will comply with all of the following three requirements: (1) conform to Section 409A of the Internal Revenue Code of 1986, as amended Code; (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(42) to the extent possible under Code Section 409A, preserve the original intent of that all provision; and (3) otherwise be without any reduction in the amount of such payments are payable no later than two and a half months after the end or benefits ultimately paid or provided to you. Without limitation of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is foregoing, if you are a “specified employee” for purposes of under Code Section 409A(a)(2)(B)(i) of the 409A(a)(2)(B), then, except as permitted by Code at such timeSection 409A, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Code Section 409A of the Code shall not will be made delayed until the later of (i) eighteen months following the Effective Date or (ii) date that is six months plus one day after the Executive’s Separation your separation from Service service (the “409A Deferral Suspension Period”) as required by Section 409A of the Code), provided that the payment of and any such deferred compensation may payments or benefits to which you would otherwise be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically entitled during the 409A Deferral Period shall first six months after your separation from service will be accumulated and paid in a lump sum as soon as or provided on the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts date that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed six months after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month periodseparation form service.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended The parties intend that the payments hereunder shall, and benefits provided for in this Agreement to the maximum extent permissible under Section 409A of the Code, either be exempt from Section 409A of the Code under either Internal Revenue Code, as amended (ithe "Code") the exception for involuntary separation pay to the extent or be provided in a manner that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection complies with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until Code. To the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) extent that any provision in this Agreement is ambiguous as required by to its compliance with Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period provision shall be accumulated and paid read in such a lump sum manner so that no payments due under this Agreement shall be subject to an "additional tax" as soon as the 409A Deferral Period ends, and the balance defined in Section 409A(a)(1)(B) of the payment shall be made as otherwise scheduled. b. Code. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes , each payment made under this Agreement shall be treated as a separate payment. In no event may the Executive, directly or indirectly, designate the calendar year of this Agreement, with respect payment. Notwithstanding anything contained herein to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on contrary, all payments and benefits which are payable upon a termination of employment hereunder shall be paid or provided only upon those terminations of employment that constitute a 'separation from service, termination of employment or separation ' from service shall mean a “separation from service” the Company within the meaning of Section 409A of the Code (determined after applying the presumptions set forth in Treas. Reg. Section 1.409A-1(h)(1)). All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where it applicable, the requirement that (i) any reimbursement is reasonably anticipated that no further services would for expenses incurred during the Executive's lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be performed after such date made on or that before the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) last day of the average level of bona fide services calendar year following the Executive performed over year in which the immediately preceding thirty-six expense is incurred, and (36iv) month periodthe right to reimbursement is not subject to liquidation or exchange for another benefit.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with The Plan and this Agreement that is considered are designed and administered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to Code. To the extent that all payments are payable the Administrator or any governmental agency determines that any PSU granted hereunder is subject to Section 409A of the Code, the Agreement shall incorporate (or shall be amended to incorporate) the terms and conditions necessary to avoid the consequences specified in Section 409A(a) of the Code. Notwithstanding anything in this Agreement to the contrary, if any amounts that become due under this Agreement on account of Xxxxxxx’s termination of employment constitute “nonqualified deferred compensation” within the limitations described in Treasury Regulation meaning of Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end 409A of the first taxable year in which Code, payment of such amounts shall not commence until Grantee incurs a Separation From Service. If, at the right to the payment is no longer subject to a substantial risk time of forfeiture. a. If the Executive Xxxxxxx’s Separation From Service under this Agreement, Grantee is a “specified employee” for purposes (within the meaning of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code), provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute “nonqualified deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from servicecompensation” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would become payable on account of Grantee’s Separation From Service will not be performed paid until after such date or that the level end of bona fide services the Executive would perform sixth calendar month beginning after that date Xxxxxxx’s Separation From Service (whether as an employee or independent contractor“409A Suspension Period”) would permanently decrease to the extent necessary to avoid the imposition of taxes under Section 409A of the Code. Within 14 calendar days after the end of the 409A Suspension Period, Grantee shall be paid a level less than or lump sum payment equal to twenty percent (20%) any payments delayed because of the average level preceding sentence, without interest. Thereafter, Grantee shall receive any remaining benefits as if there had not been an earlier delay. Each payment or benefit payable under this Agreement is intended to constitute a separate payment for purposes of bona fide services Section 409A of the Executive performed over the immediately preceding thirty-six (36) month periodCode.

409A. It This Agreement is intended to provide payments that any payment or benefit are exempt from and/or that is provided pursuant to or in connection comply with this Agreement that is considered to be deferred compensation subject to 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 paid and provided interpreted accordingly (it being understood that the payment of any reimbursement hereunder shall be made in a mannermanner exempt from, and at such time and formor in compliance with, as complies with Section 409A). If any provision of this Agreement would cause Executive 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 requirements provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a "separate payment" within the meaning of the Section 409A. All references herein to Executive's "termination of employment" or other similar term shall refer to Executive's "separation from service" within the meaning of Section 409A and Treas. Reg. Section 1.409A-l(h). Notwithstanding anything herein to the contrary, if on the date of Executive's separation from service Executive is a "specified employee," as defined in Section 409A, then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the additional tax provided by Section 409A(a)(1)(B) of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of if not delayed as required by Section 409A(a)(2)(B)(i) of the Code at such time, any payments to shall be made or benefits to be delivered in connection with delayed until the Executive’s “Separation from Service” first (as defined below1st) that constitute deferred compensation subject to Section 409A business day of the Code seventh (7th) month following Executive's separation from service date (or, if earlier, Executive's date of death), and the total of such delayed amounts shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in as a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. on such date. For purposes of clarification, any portion of any separation allowance or other payment due to Executive under this Agreement, all rights Agreement that is not considered deferred compensation under Section 409A through either the "short- term deferral" exception pursuant to payments and benefits hereunder shall Treasury Reg. 1.409A-l(b)(4) or the "separation pay" exception pursuant to Treasury Reg. 1.409A-l(b)(9) will not be treated as rights to receive a series of separate payments and benefits subject to the fullest extent allowed by 6 month delay described in this paragraph as provided under Section 409A of the Code. c. For purposes of this Agreement, with 409A. With respect to the timing any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that constitutes a "deferral of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” compensation" within the meaning of Section 409A 409A, (i) the expenses eligible for reimbursement or in-kind benefits provided to Executive must be incurred during the Employment Period (or applicable survival period), (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the Code where it calendar year following the calendar year in which the applicable expense is reasonably anticipated incurred, and (iv) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Executive acknowledges and agrees that Executive has obtained no further services would be performed after advice from the Company 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 date persons or that entities have made any representation regarding the level tax consequences, if any, of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) Executive's receipt of the average level payments, benefits and other consideration provided for in this Agreement. Executive further acknowledges and agrees that Executive is personally responsible for the payment of bona fide services all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Executive performed over the immediately preceding thirty-six (36) month periodis, or may become, obligated to pay on account of any payments made and other consideration provided to Executive under this Agreement.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended The parties intend that the payments hereunder shall, and benefits provided for in this Agreement to the maximum extent permissible under Section 409A of the Code, either be exempt from Section 409A of the Code under either Internal Revenue Code, as amended (ithe “Code”) the exception for involuntary separation pay to the extent or be provided in a manner that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection complies with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until Code. To the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) extent that any provision in this Agreement is ambiguous as required by to its compliance with Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period provision shall be accumulated and paid read in such a lump sum manner so that no payments due under this Agreement shall be subject to an "additional tax" as soon as the 409A Deferral Period ends, and the balance defined in Section 409A(a)(1)(B) of the payment shall be made as otherwise scheduled. b. Code. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes , each payment made under this Agreement shall be treated as a separate payment. In no event may the Executive, directly or indirectly, designate the calendar year of this Agreement, with respect payment. Notwithstanding anything contained herein to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on contrary, all payments and benefits which are payable upon a termination of employment hereunder shall be paid or provided only upon those terminations of employment that constitute a ‘separation from service, termination of employment or separation ’ from service shall mean a “separation from service” the Company within the meaning of Section 409A of the Code (determined after applying the presumptions set forth in Treas. Reg. Section 1.409A-1(h)(1)). All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where it applicable, the requirement that (i) any reimbursement is reasonably anticipated that no further services would for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be performed after such date made on or that before the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) last day of the average level of bona fide services calendar year following the Executive performed over year in which the immediately preceding thirty-six expense is incurred, and (36iv) month period.the right to reimbursement is not subject to liquidation or exchange for another benefit

409A. It This Agreement is intended to provide payments that any payment or benefit are exempt from and/or that is provided pursuant to or in connection comply with this Agreement that is considered to be deferred compensation subject to 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 paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either interpreted accordingly (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided it being understood that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to reimbursement hereunder shall be made in installments a manner exempt from, or periodically during the 409A Deferral Period in compliance with, Section 409A). If any provision of this Agreement would cause Executive to incur any additional tax under Section 409A, this Agreement shall be accumulated and paid deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a lump sum as soon as manner that maintains, to the 409A Deferral Period endsextent possible, and the balance original intent of the payment shall be made as otherwise scheduled. b. applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement, all rights to payments and benefits hereunder Agreement shall be treated designated as rights to receive a series of “separate payments and benefits to payment” within the fullest extent allowed by Section 409A meaning of the Code. c. For purposes of this Agreement, with respect Section 409A. All references herein to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on Executive’s “termination of employment employment” or separation from service, termination of employment or separation from service other similar term shall mean a refer to Executive’s “separation from service” within the meaning of Section 409A and Treas. Reg. Section 1.409A-l(h). Notwithstanding anything herein to the contrary, if on the date of Executive’s separation from service Executive is a “specified employee,” as defined in Section 409A, then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the additional tax provided by Section 409A(a)(1)(B) of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether if not delayed as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%required by Section 409A(a)(2)(B)(i) of the average level Code shall be delayed until the first (1st) business day of bona fide services the Executive performed over the immediately preceding thirty-six seventh (367th) month following Executive’s separation from service date (or, if earlier, Executive’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 Executive 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-l(b)(4) or the “separation pay” exception pursuant to Treasury Reg. 1.409A-l(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 Executive must be incurred during the Employment Period (or applicable survival period), (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive 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. Executive acknowledges and agrees that Executive has obtained no advice from the Company 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 Executive’s receipt of the payments, benefits and other consideration provided for in this Agreement. Executive further acknowledges and agrees that Executive is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Executive is, or may become, obligated to pay on account of any payments made and other consideration provided to Executive under this Agreement.

409A. It is intended that any payment or benefit that is provided pursuant to or (a) Anything in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A contrary notwithstanding, if at the time of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the ExecutiveEmployee’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it Code, the Company determines that Employee is reasonably anticipated a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that no further services Employee becomes entitled to under this Agreement would be performed after such date or that considered deferred compensation subject to the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the average level Code as a result of bona fide services the Executive performed over application of Section 409A(a)(2)(B)(i) of the immediately preceding thirtyCode, such payment will not be payable and such benefit will not be provided until the date that is the earlier of (A) six months and one day after Employee’s separation from service, or (B) Employee’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment will include a catch-six up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments will be payable in accordance with their original schedule. Any such delayed cash payment will earn interest at an annual rate equal to the applicable federal short-term rate published by the Internal Revenue Service for the month in which the date of separation from service occurs, from such date of EMPLOYMENT AGREEMENT separation from service until the payment. The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-l(h). (36b) month periodThe parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.

409A. It is intended that any payment or benefit that is provided pursuant For purposes of this letter, a termination of employment will be determined consistent with the rules relating to or a “separation from service” as defined in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986I 986, as amended amended, and the regulations thereunder (“CodeSection 409A”) shall be paid and ). Notwithstanding anything else provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shallherein, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered provided under this letter agreement in connection with the Executive’s “Separation your separation from Service” (as defined below) that service constitute deferred compensation subject to Section 409A 409A, and you are deemed at the time of the Code such termination of full-time employment to be a “specified employee” under Section 409A, then, in order to comply with Section 409A, such payment shall not be made or commence until the later earlier of (i) eighteen months following the Effective Date day after the expiration of the 6-month period measured from your separation from service from the Company or (ii) six months plus one day after the Executive’s Separation date of your death following such a separation from Service (service; provided, however, that such deferral shall only be effected to the “409A Deferral Period”extent required to avoid adverse tax treatment to you including, without limitation, the additional tax for which you would otherwise be liable under Section 409A(a)(l)(B) as required by Section 409A in the absence of such a deferral. The first payment thereof will include a catch-up payment covering the Code, provided amount that the payment of any such deferred compensation may be would have otherwise been paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated period between your termination of full-time employment and paid in a lump sum as soon as the 409A Deferral Period endsfirst payment date but for the application of this provision, and the balance of the payment shall installments (if any) will be made as otherwise scheduled. b. For purposes payable in accordance with their original schedule. To the extent that any provision of this Agreementletter agreement is ambiguous as to its compliance with Section 409A, the provision will be read in such a manner so that all rights to payments and benefits hereunder shall comply with Section 409A. To the extent any payment under this letter agreement may be treated classified as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from serviceshort-term deferral” within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level Section 409A. Payments pursuant to this letter agreement are intended to constitute separate payments for purposes of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%Section l.409A-2(b)(2) of the average level Treasury Regulations. Notwithstanding any provision hereof to the contrary, if any payment constitutes nonqualified deferred compensation subject to Section 409A, and such payment would otherwise be paid (assuming the release of bona fide services claims described in Section 10 is given) prior to the Executive performed over last day on which the immediately preceding thirty-six release could become irrevocable assuming the latest possible execution and delivery of the release (36) month periodsuch last day, the “Release Deadline”), and if the employment termination date and the Release Deadline span two calendar years, then such payments shall be made, if ever, only in the second calendar year, even if the release becomes irrevocable in the first calendar year (and any remaining payments due shall be paid or provided in accordance with the normal payment dates specified for them herein).

409A. It is intended that any payment or benefit that is provided pursuant to or (a) Anything in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A contrary notwithstanding, if at the time of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the ExecutiveConsultant’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it Code, the Company determines that Consultant is reasonably anticipated a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that no further services Consultant becomes entitled to under this Agreement would be performed after such date or that considered deferred compensation subject to the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the average level Code as a result of bona fide services the Executive performed over application of Section 409A(a)(2)(B)(i) of the immediately preceding thirtyCode, such payment will not be payable and such benefit will not be provided until the date that is the earlier of (A) six months and one day after Consultant’s separation from service, or (B) Consultant’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment will include a catch-six up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments will be payable in accordance with their original schedule. Any such delayed cash payment will earn interest at an annual rate equal to the applicable federal short-term rate published by the Internal Revenue Service for the month in which the date of separation from service occurs, from such date of separation from service until the payment. The determination of whether and when a separation from service has occurred will be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (36b) month periodThe parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.

409A. It is The Restricted Stock Unit Agreement as well as payments and benefits under the Restricted Stock Unit Agreement are intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation exempt from, or to the extent subject thereto, to comply with Section 409A of the Internal Revenue Code of 1986Code, as amended (“Code”) shall be paid and provided in a mannerand, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shallaccordingly, to the maximum extent permissible permitted, the Restricted Stock Unit Agreement shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Recipient shall not be exempt considered to have terminated employment or service with the Company and its Affiliates for purposes of this Restricted Stock Unit Agreement and no payment shall be due to the Recipient under this Restricted Stock Unit Agreement until the Recipient would be considered to have incurred a “separation from service” from the Company and its Affiliates within the meaning of Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent Code. Any payments described in this Restricted Stock Unit Agreement that all payments are payable due within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-“short term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employeeperiod” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to in Section 409A of the Code shall not be made until treated as deferred compensation unless Applicable Law requires otherwise. Notwithstanding anything to the later contrary in this Restricted Stock Unit Agreement, to the extent that any payments hereunder are payable upon a separation from service and such payment would result in the imposition of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by any individual tax and penalty interest charges imposed under Section 409A of the Code, provided that the settlement and payment of any such deferred compensation may awards (or other amounts) shall instead be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due or benefit to be made in installments or periodically during the 409A Deferral Period provided under this Restricted Stock Unit Agreement shall be accumulated and paid in construed as a lump sum as soon as the 409A Deferral Period ends, and the balance of the separate identified payment shall be made as otherwise scheduled. b. For for purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes . The Company makes no representation that any or all of the payments or benefits described in this Agreement, Restricted Stock Unit Agreement will be exempt from or comply with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of and makes no undertaking to preclude Section 409A of the Code where it is reasonably anticipated that no further services would from applying to any such payment. The Recipient shall be performed after such date solely responsible for the payment of any taxes and penalties incurred under Section 409A. For purposes of a deferral of compensation under this Restricted Stock Unit Agreement, in applying Treasury Regulation §1.414(c)-2 for purposes of determining trades or that the level of bona fide services the Executive would perform after that date businesses (whether as an employee or independent contractornot incorporated) would permanently decrease to a level less than or equal to twenty percent (20%that are under common control for purposes of section 414(c) of the average level Code, the language “at least 20 percent” shall be used instead of bona fide services the Executive performed over the immediately preceding thirty-six (36) month period“at least 80 percent” at each place it appears in Treasury Regulation §1.414(c)-2.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. . c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month period.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. (a) If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. (b) For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. (c) For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month period.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with the payments and benefits under this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies comply with the applicable requirements of Section 409A of the Code (together with the Treasury Regulations relating thereto, “Section 409A”), or satisfy the requirements for an exemption to avoid Section 409A, in each case, to the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shallextent applicable to this Agreement and, accordingly, to the maximum extent permissible permitted, this Agreement shall be interpreted and be administered to be in compliance therewith (or to be in satisfaction of an exemption therefrom). Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A 409A, the Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement, no Termination Date shall be deemed to have occurred, and no payment otherwise payable upon a termination of the Code, Executive’s employment shall be exempt paid to the Executive under this Agreement unless and until the Executive’s termination of employment constitutes a “separation from service” from the Company within the meaning of Section 409A (a “Separation from Service”). Any payments described in this Agreement that qualify for the “short-term deferral” exception from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception as described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may will be paid immediately following the Executive’s deathunder such exception. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii) and the application of the short-term deferral exception), each payment under this Agreement will be performed after such date treated as a separate payment and any right to a series of installment payments pursuant to this Agreement will be treated as a right to a series of separate payments. Notwithstanding anything to the contrary in this Agreement (whether under this Agreement or that otherwise), to the level extent delayed commencement of bona fide services any portion of the payments to be made to the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease upon his Separation from Service is required to avoid a level less than or equal to twenty percent (20%prohibited payment under Section 409A(a)(2)(B)(i) of the average level Code, such portion of bona fide services the payments shall be delayed and paid on the first business day after the earlier of (i) the date that is six (6) months following such Separation from Service and (ii) the Executive’s death. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, any payments or amounts reimbursable to the Executive performed over under this Agreement shall be paid or reimbursed to the immediately preceding thirtyExecutive on or before the last day of the calendar year following the calendar year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-six kind benefits provided to the Executive) during any one calendar year may not affect amounts reimbursable or provided in any subsequent calendar year and the Executive’s right to such reimbursements (36or in-kind benefits) month periodmay not be liquidated or exchanged for any other benefit. With respect to any payments hereunder that may be made during any particular payment window (e.g., within sixty days) rather than on a specified payment date, the Company shall have the right to determine the exact payment date within such payment window.

409A. It This Agreement is intended to provide payments that any payment or benefit are exempt from and/or that is provided pursuant to or in connection comply with this Agreement that is considered to be deferred compensation subject to 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 paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either interpreted accordingly (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided it being understood that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to reimbursement hereunder shall be made in installments a manner exempt from, or periodically during the 409A Deferral Period in compliance with, Section 409A). If any provision of this Agreement would cause Executive to incur any additional tax under Section 409A, this Agreement shall be accumulated and paid deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a lump sum as soon as manner that maintains, to the 409A Deferral Period endsextent possible, and the balance original intent of the payment shall be made as otherwise scheduled. b. applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement, all rights to payments and benefits hereunder Agreement shall be treated designated as rights to receive a series of “separate payments and benefits to payment” within the fullest extent allowed by Section 409A meaning of the Code. c. For purposes of this Agreement, with respect Section 409A. All references herein to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on Executive’s “termination of employment employment” or separation from service, termination of employment or separation from service other similar term shall mean a refer to Executive’s “separation from service” within the meaning of Section 409A and Treas. Reg. Section 1.409A-1(h). Notwithstanding anything herein to the contrary, if on the date of Executive’s separation from service Executive is a “specified employee,” as defined in Section 409A, then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the additional tax provided by Section 409A(a)(1)(B) of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether if not delayed as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%required by Section 409A(a)(2)(B)(i) of the average level Code shall be delayed until the first (1st) business day of bona fide services the Executive performed over the immediately preceding thirty-six seventh (367th) month following Executive’s separation from service date (or, if earlier, Executive’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 Executive 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 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 Executive must be incurred during the Employment Period (or applicable survival period), (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive 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. Executive acknowledges and agrees that Executive has obtained no advice from the Company 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 Executive’s receipt of the payments, benefits and other consideration provided for in this Agreement. Executive further acknowledges and agrees that Executive is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Executive is, or may become, obligated to pay on account of any payments made and other consideration provided to Executive under this Agreement.

409A. It This Agreement is intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation subject to exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder (“CodeCode Section 409A”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Codepossible, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay whether pursuant to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) or otherwise. To the extent Code Section 409A is applicable to this Agreement, it is intended that this Agreement comply with the deferral, payout and other limitations, restrictions and requirements imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the extent that all payments are payable no later than two contrary, this Agreement will be interpreted, operated and administered in a half months after manner consistent with such intentions. Without limiting the end generality of the first taxable year in which the right foregoing, and notwithstanding any other provision of this Agreement to the payment is no longer subject contrary, with respect to a substantial risk any payments under this Agreement to which Code Section 409A applies, all references in this Agreement to the termination of forfeiture. a. If the Executive Employee’s employment or service are intended to mean the Employee’s “separation from service,” within the meaning of Code Section 409A(a)(2)(A)(i). In addition, if Employee is a “specified employeeEmployee,” for purposes within the meaning of Code Section 409A(a)(2)(B)(i) of 409A, then to the Code at such time, any payments extent necessary to be made or benefits avoid subjecting Employee to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment imposition of any such deferred compensation may additional tax under Code Section 409A, amounts that would otherwise be paid payable under this Agreement during the six-month period immediately following the ExecutiveEmployee’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service,” within the meaning of Section 409A Code 409A(a)(2)(A)(i), shall not be paid to the Employee during such period, but will instead be accumulated and paid to the Employee (or, in the event of the Code where it Employee’s death, the Employee’s estate) in a lump sum on the first business day after the earlier of (i) the date that is reasonably anticipated that no further services would be performed after such date six months following the Employee’s separation from service or that (ii) the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month periodEmployee’s death.

409A. It Notwithstanding anything to the contrary in this Agreement, if at the time Employee’s employment terminates, and Employee is intended a “specified employee,” as defined below, any and all amounts payable under this Agreement on account of such separation from service that any payment or benefit would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6) month period or, if earlier, upon Employee’s death; except (a) to the extent of amounts that is provided do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (b) benefits which qualify as excepted welfare benefits pursuant to Treasury regulation Section 1.409A-1(a)(5); or in connection with this Agreement (c) other amounts or benefits that is considered to be deferred compensation are not subject to the requirements of Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, 1986 as amended (the “Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance). It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights references to payments “termination of employment” and benefits hereunder correlative phrases shall be treated as rights construed to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean require a “separation from service” within the meaning of (as defined in Section 409A of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%1.409A-1(h) of the average level Treasury regulations after giving effect to the presumptions contained therein), and the term “specified employee” means an individual determined by the Company to be a specified employee under Treasury regulation Section 1.409A-1(i). Each payment made under this Agreement shall be treated as a separate payment and the right to a series of bona fide services installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall the Executive performed over Company have any liability relating to the failure or alleged failure of any payment or benefit under this Agreement to comply with, or be exempt from, the requirements of Section 409A. The immediately preceding thirty-six (36) month periodsentence shall not apply if such failure is caused by the Company’s or any of its affiliates’ breach of this Agreement.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-non­ compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(91.409A­1(b)(9), or (ii) the short-short­ term deferral exception described in Treasury Regulation Section 1.409A-1(b)(41.409A­1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. . a If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. . b For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. . c For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month period.depends

409A. (a) It is intended the intention of the parties that any payment compensation or benefit that is provided pursuant to or in connection with benefits payable under this Agreement that is considered to not be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable additional tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject imposed pursuant to Section 409A of the Code and this Agreement shall be interpreted accordingly. To the extent such potential payments or benefits could become subject to additional tax under such Section, the parties shall cooperate to amend this Agreement with the goal of giving Executive the economic benefits described herein in a manner that does not result in such tax being imposed. However, in no event shall the Company be made until liable to Executive for any taxes, interest, or penalties imposed by virtue of the later application of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Code Section 409A of the Code, to any payments or benefits provided that the under this Agreement. (b) Each payment of any such deferred compensation may or benefit made pursuant to this Agreement shall be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due deemed to be a separate payment for purposes of Code Section 409A and each payment made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period endsEMPLOYMENT AGREEMENT - XXXXX X. XXXXX, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder XX. Page 14 shall be treated as rights to receive a series of separate payments and benefits for purposes of Code Section 409A, to the fullest extent allowed by permitted under applicable law. In addition, payments or benefits are intended to be exempt from the requirements of Code Section 409A of to the Codemaximum extent possible as “short-term deferrals” pursuant to Treasury Regulation Section 1.409A-1(b)(4), as involuntary separation pay pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii), as exempt reimbursements under Treasury Regulation Section 1.409A-1(b)(9)(v), and/or under any other exemption that may be applicable, and this Agreement shall be construed accordingly. c. For purposes of this Agreement, with respect to the timing of any amounts (c) All taxable reimbursements provided hereunder that constitute are deferred compensation subject to the requirements of Code Section 409A of shall be made not later than the Code that depends on termination of employment calendar year following the calendar year in which the expense was incurred. Any such taxable reimbursements or separation from service, termination of employment any taxable in-kind benefits provided in one calendar year shall not affect the expenses eligible for reimbursement or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would in-kind benefits to be performed after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month periodprovided in any other taxable year.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with the payments and benefits under this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies comply with the applicable requirements of Section 409A of the Code (together with the Treasury Regulations relating thereto, “Section 409A”), or satisfy the requirements for an exemption to avoid Section 409A, in each case, to the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shallextent applicable to this Agreement and, accordingly, to the maximum extent permissible permitted, this Agreement shall be interpreted and be administered to be in compliance therewith (or to be in satisfaction of an exemption therefrom). Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A 409A, the Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement, no Termination Date shall be deemed to have occurred, and no payment otherwise payable upon a termination of the Code, Executive’s employment shall be exempt paid to the Executive under this Agreement unless and until the Executive’s termination of employment constitutes a “separation from service” from the Company within the meaning of Section 409A (a “Separation from Service”). Any payments described in this Agreement that qualify for the “short-term deferral” exception from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception as described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may will be paid immediately following the Executive’s deathunder such exception. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii) and the application of the short-term deferral exception), each payment under this Agreement will be performed after such date treated as a separate payment. Notwithstanding anything to the contrary in this Agreement (whether under this Agreement or that otherwise), to the level extent delayed commencement of bona fide services any portion of the payments to be made to the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease upon his Separation from Service is required to avoid a level less than or equal to twenty percent (20%prohibited payment under Section 409A(a)(2)(B)(i) of the average level Code, such portion of bona fide services the payments shall be delayed and paid on the first business day after the earlier of (i) the date that is six (6) months following such Separation from Service and (ii) the Executive’s death. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts reimbursable to the Executive performed over under this Agreement shall be paid to the immediately preceding thirtyExecutive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-six (36kind benefits provided to the Executive) month periodduring any one year may not affect amounts reimbursable or provided in any subsequent year and may not be liquidated or exchanged for any other benefit.

409A. It The intent of the parties is intended that any payment payments and benefits under this letter agreement be exempt from or benefit that is provided pursuant comply with Section 409A of the Code, to or in connection with the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement that is considered letter agreement shall be interpreted and administered to be deferred compensation subject to in compliance therewith and each of the parties shall report the payments and benefits under this letter agreement as exempt from or compliant with Section 409A of the Internal Revenue Code of 1986, 1986 as amended (“CodeSection 409A). All payments provided hereunder are intended to constitute separate payments for purposes of Treasury Regulation Section 1.409A-2(b)(2). If the Company determines that any benefits provided under this Agreement constitute “deferred compensation” under”) shall be paid and provided ), such benefits will not commence in connection with your termination of employment or consultancy unless such termination also qualifies as a manner, and at such time and form, as complies “separation from service” with the applicable requirements Company within the meaning of Treasury Regulation Section 409A of 1.409A- 1(h) (without regard to any permissible alternative definition thereunder) (“Separation from Service”). If the Code to avoid the unfavorable tax consequences Company determines that any benefits provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under this Agreement constitute “deferred compensation” under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments and you are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of the Company or any affiliate (or any successor entity thereto) within the meaning of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with on the Executive’s “date of your Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that then the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period benefits shall be accumulated delayed until the earlier of (i) the date that is six (6) months and paid in one (1) day after the date of your Separation from Service, or (ii) the date of your death (such date, the “Delayed Payment Date”), and the Company (or the successor entity thereto, as applicable) shall (A) pay to you a lump sum as soon as amount equal to the 409A Deferral Period endssum of the benefit payments that otherwise would have been paid to you on or before the Delayed Payment Date, without any adjustment on account of such delay, and (B) continue the benefit payments in accordance with any applicable payment schedules set forth for the balance of the period specified herein. In addition to the above, to the extent required to comply with Section 409A and the applicable regulations and guidance issued thereunder, if the applicable deadline for you to execute (and not revoke) the applicable Separation Date Release spans two (2) calendar years, your Severance Benefits shall commence to be paid in installments on the first regularly scheduled payroll date that occurs in the calendar year following the calendar year of the Effective Date of the Separation Date Release. To the extent that any reimbursements under this Agreement are taxable to you, any such reimbursement payment due to you shall be made paid as otherwise scheduled. b. For purposes promptly as practicable consistent with the Company’s practice following appropriate itemization and substantiation of expenses incurred, and in all events on or before the last day of the taxable year following the taxable year in which the related expense was incurred. The in-kind benefits and reimbursements under this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation are not subject to Section 409A liquidation or exchange for another benefit, and the amount of such benefits or reimbursements that you receive in one taxable year shall not affect the Code amount of such benefits or reimbursements that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month periodyou receive in any other taxable year.

409A. It is intended that any payment or benefit that is provided pursuant to or Notwithstanding anything in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible contrary, the following provisions shall apply to all benefits and payments provided under Section 409A of the Code, be exempt from Section 409A of the Code under either this Agreement by SMARTBANK to XXXXXXX: (ia) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9)The payment, or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end commencement of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreementpayments, with respect to the timing hereunder of any amounts that constitute non-qualified deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” (within the meaning of Section 409A of the Internal Revenue Code where it (“Section 409A”) upon a termination of employment shall be delayed until such time as XXXXXXX has also undergone a separation from service (for purposes of Section 409A), at which time such non-qualified deferred compensation (calculated as of the date of the XXXXXXX’x termination of employment) shall be paid (or commence to be paid) to XXXXXXX as set forth in this Agreement as if XXXXXXX had undergone such termination of employment (under the same circumstances) on the date of the XXXXXXX’x ultimate separation from service. (b) It is reasonably anticipated that no further services would be performed after such date or the parties’ intention that the level payments and benefits and entitlements to which XXXXXXX could become entitled in connection with this Agreement be exempt from or comply with Section 409A and the regulations and other guidance promulgated thereunder and, accordingly, this Agreement will be interpreted to be consistent with such intent. (c) While the payments and benefits provided hereunder are intended to be structured in a manner to avoid the implication of bona fide services the Executive would perform after any penalty taxes under Section 409A, in no event whatsoever shall SMARTBANK be liable for any additional tax, interest, or penalties that date may be imposed on XXXXXXX as a result of Section 409A or any damages for failing to comply with Section 409A (whether other than for withholding obligations or other obligations applicable to employers, if any, under Section 409A). (d) No deferred compensation payments provided for under this Agreement shall be accelerated to XXXXXXX. (e) Any installment payments provided for in this Agreement shall be treated as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) separate payments for purposes of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month period.Section 409A.

409A. It is intended that any payment or benefit that is provided pursuant to or in connection with this Agreement that is considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) shall be paid and provided in a manner, and at such time and form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code at such time, any payments to be made or benefits to be delivered in connection with the Executive’s “Separation from Service” (as defined below) that constitute deferred compensation subject to Section 409A of the Code shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled.the b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. . c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month period.

409A. It This Agreement is intended to provide payments that any payment or benefit are exempt from and/or that is provided pursuant to or in connection comply with this Agreement that is considered to be deferred compensation subject to 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 paid and provided interpreted accordingly (it being understood that the payment of any reimbursement hereunder shall be made in a mannermanner exempt from, and at such time and formor in compliance with, as complies with Section 409A). If any provision of this Agreement would cause Executive 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 requirements provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a "separate payment" within the meaning of the Section 409A. All references herein to Executive's "termination of employment" or other similar term shall refer to Executive's "separation from service" within the meaning of Section 409A and Treas. Reg. Section l.409A-l(h). Notwithstanding anything herein to the contrary, if on the date of Executive's separation from service Executive is a "specified employee," as defined in Section 409A, then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the additional tax provided by Section 409A(a)(l)(B) of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes of if not delayed as required by Section 409A(a)(2)(B)(i) of the Code at such time, any payments to shall be made or benefits to be delivered in connection with delayed until the Executive’s “Separation from Service” first (as defined below1st) that constitute deferred compensation subject to Section 409A business day of the Code seventh (7th) month following Executive's separation from service date (or, if earlier, Executive's date of death), and the total of such delayed amounts shall not be made until the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Code, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in as a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduled. b. on such date. For purposes of clarification, any portion of any separation allowance or other payment due to Executive under this Agreement, all rights Agreement that is not considered deferred compensation under Section 409A through either the "short­ term deferral" exception pursuant to payments and benefits hereunder shall Treasury Reg. l.409A-l(b)(4) or the "separation pay" exception pursuant to Treasury Reg. l.409A-l(b)(9) will not be treated as rights to receive a series of separate payments and benefits subject to the fullest extent allowed by 6 month delay described in this paragraph as provided under Section 409A of the Code. c. For purposes of this Agreement, with 409A. With respect to the timing any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that constitutes a "deferral of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” compensation" within the meaning of Section 409A 409A, (i) the expenses eligible for reimbursement or in-kind benefits provided to Executive must be incurred during the Employment Period (or applicable survival period), (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the Code where it calendar year following the calendar year in which the applicable expense is reasonably anticipated incurred, and (iv) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Executive acknowledges and agrees that Executive has obtained no further services would be performed after advice from the Company 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 date persons or that entities have made any representation regarding the level tax consequences, if any, of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) Executive's receipt of the average level payments, benefits and other consideration provided for in this Agreement. Executive further acknowledges and agrees that Executive is personally responsible for the payment of bona fide services all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Executive performed over the immediately preceding thirty-six (36) month periodis, or may become, obligated to pay on account of any payments made and other consideration provided to Executive under this Agreement.

409A. It is intended 4.1.1 The parties believe that any payment if amounts are paid at the time or benefit that is provided pursuant to or times indicated in connection with this Agreement that is considered Agreement, then the payments will not be required to be deferred compensation subject to Section 409A delayed for six months under 409(a)(2)(B) of the Internal Revenue Code of 1986, as amended (the “Code”) shall be paid and provided ). However, notwithstanding anything to the contrary in a mannerthis Agreement, and if at such the time and form, as complies with the applicable requirements of Section 409A of the Code to avoid Executive’s separation from service within the unfavorable tax consequences provided therein for non-compliance. It is further intended that the payments hereunder shall, to the maximum extent permissible under meaning of Section 409A of the Code, be exempt from Section 409A of the Code under either (i) the exception for involuntary separation pay to the extent Company determines that all payments are payable within the limitations described in Treasury Regulation Section 1.409A-1(b)(9), or (ii) the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4) to the extent that all payments are payable no later than two and a half months after the end of the first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. a. If the Executive is a “specified employee” for purposes within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code at as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such timepayment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any payments to such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be made payable in accordance with their original schedule. 4.1.2 All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be delivered provided or the expenses eligible for reimbursement in connection with any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. 4.1.3 To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “Separation separation from Serviceservice.” (The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). 4.1.4 The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as defined below) to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. 4.1.5 The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code shall but do not be made until satisfy an exemption from, or the later of (i) eighteen months following the Effective Date or (ii) six months plus one day after the Executive’s Separation from Service (the “409A Deferral Period”) as required by Section 409A of the Codeconditions of, provided that the payment of any such deferred compensation may be paid immediately following the Executive’s death. Payments of any such deferred compensation otherwise due to be made in installments or periodically during the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as otherwise scheduledSection. b. For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. c. For purposes of this Agreement, with respect to the timing of any amounts that constitute deferred compensation subject to Section 409A of the Code that depends on termination of employment or separation from service, termination of employment or separation from service shall mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after such date or that the level of bona fide services the Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to a level less than or equal to twenty percent (20%) of the average level of bona fide services the Executive performed over the immediately preceding thirty-six (36) month period.