Common use of 409A Clause in Contracts

409A. (a) To the extent required by Section 409A of the Code, all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

409A. (a) To Notwithstanding anything to the extent required by contrary in this Agreement, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A 409A. For purposes of Section 409A, each of the Code, all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to require a “separation from service” (negotiate in good faith to make amendments to the Agreement, as defined in the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 1.409A-1(h) 409A. Notwithstanding anything else herein, to the extent any of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or Severance Pay benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) the if Executive is deemed at determined by the time of such termination of employment Company to be a “"specified employee” under Section 409A " for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the CodeSeverance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), then commencement of such payments or portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall not be made or commence until payable in a lump sum on the earliest of (x) first business day following the expiration of the such six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, and any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the Executive maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or the Executive’s beneficiary in one lump sumTreasury Regulation § 1.409A-l(b)(4). For the purposes The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Section 18Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) construed, and interpreted in accordance with the policies of the Employersuch intent. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

409A. (a) To the extent required by It is intended that this Agreement will comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and guidelines promulgated thereunder (collectively, all references “Section 409A”), to “termination of employment,” “Date of Termination” the extent the Agreement is subject thereto, and correlative phrases for purposes of this the Agreement shall be construed interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to require comply with Section 409A, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure to act pursuant to this Section 12.14 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A or Section 457A of the Code. (b) Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed on the date of his or her “separation from service” (as defined in within the meaning of Treas. Reg. Section 1.409A-1(h)) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment or benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service” that is required to be delayed pursuant to Section 409A(a)(2)(B) of the CodeCode (after taking into account any applicable exceptions to such requirement), then such payments payment or benefits benefit shall not be made or commence until provided on the earliest date that is the earlier of (xi) the expiration of the six (6) month and one day 6)-month period measured from the date of the Executive’s “separation from service (as defined in Section 18(a) above) from the Company; service,” or (yii) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to (the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral“Delay Period”). Upon the expiration of the applicable deferral periodDelay Period, any all payments which and benefits delayed pursuant to this Section 12.14 (whether they would have otherwise been made during that period (whether payable in a single sum or in installments) installments in the absence of this paragraph such delay) shall be paid or reimbursed to the Executive in a lump sum and any remaining payments and benefits due under this Agreement shall be paid or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) provided in accordance with the policies of the Employernormal payment dates specified for them herein. (c) It is intended that each installment of With respect to any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A arrangements of the CodeCompany and its subsidiaries that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the following conditions shall be applicable: (i) the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefitbenefits provided, under any such arrangement in one calendar year shall may not affect the expenses amount eligible for reimbursement reimbursement, or in-kind benefits to be provided, under such arrangement in any other taxable calendar year (except for any lifetime that the health and dental plans may impose a limit on the amount that may be reimbursed or other aggregate limitation applicable to medical expensespaid), in no event shall (ii) any expenses reimbursement must be reimbursed after made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesexpense was incurred, and in no event shall any (iii) the right to reimbursement or the provision of any in-kind benefit be benefits is not subject to liquidation or exchange for another benefit.. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days after termination of employment”), the actual date of payment within the specified period shall be within the sole discretion of the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A.

409A. This Agreement is intended to comply with and be interpreted in accordance with Section 409A of the Internal Revenue Code of 1986, as amended (athe “Code”) To and the extent required United States Department of Treasury regulations and other guidance issued thereunder (collectively, “Section 409A”). The parties acknowledge and agree that the interpretation of Section 409A and its application to the terms of this Agreement is uncertain and may be subject to change as additional guidance and interpretations become available. Anything to the contrary herein notwithstanding, all benefits or payments provided by the Company and its subsidiaries and affiliates to the Employee that would be deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A are intended to comply with Section 409A. If, however, any such benefit or payment is deemed to not comply with Section 409A, the Company and the Employee agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereof) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A will be achieved. In no event whatsoever shall the Company or its Subsidiaries or Affiliates be liable for any tax, interest or penalties that may be imposed on the Employee by Section 409A of the Code, all references Code or any damages for failing to “termination comply with Section 409A. Each payment in a series of employment,” “Date of Termination” and correlative phrases payments provided to the Employee pursuant to this Agreement will be deemed a separate payment for purposes of this Agreement shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of 409A. In the Treasury regulations after giving effect to event that the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained Employee is determined by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” for purposes of Section 409A at the time of his separation from service with the Company, any payments of nonqualified deferred compensation (after giving effect to any exemptions available under Section 409A of 409A) otherwise payable to the Code, then such payments or benefits Employee during the first six (6) months following his separation from service shall not be made or commence until delayed and paid in a lump sum upon the earliest earlier of (x) the expiration of the six (6) month and one day period measured from the Employee’s date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; death, or (y) the date first day of the Executiveseventh (7th) month following the Employee’s death following such separation from service; provided, however, that such deferral shall only be effected to and the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) balance of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period installments (whether in a single sum or in installmentsif any) in the absence of this paragraph shall will be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) payable in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i)their original schedule. It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense, reimbursement or in-kind benefit provided to the Employee constitutes nonqualified deferred compensation for purposes of Section 409A, (i) the amount of any expense eligible for reimbursement or the provision of any in-kind benefit under this Agreement is determined with respect to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses amount of expense eligible for reimbursement or the amount of in-kind benefit provided to the Employee in any other taxable year calendar year, (except ii) the reimbursements for any lifetime or other aggregate limitation applicable expenses for which the Employee is entitled to medical expenses), in no event shall any expenses be reimbursed after shall be made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesapplicable expense is incurred, and in no event shall any (iii) the right to payment or reimbursement or the provision of any in-kind benefit benefits hereunder may not be subject to liquidation or exchange for another any other benefit; provided, however, that the foregoing clause (i) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect.

409A. (a) To Notwithstanding anything to the extent required by contrary set forth herein, any payments and benefits provided under this Agreement that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, all references to “Section 409A”) shall not commence in connection with your termination of employment,” “Date of Termination” employment unless and correlative phrases for purposes of this Agreement shall be construed to require until you have also incurred a “separation from service” (as such term is defined in Treasury Regulation Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein(“Separation From Service”). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with unless the Company constitute deferred compensation subject reasonably determines that such amounts may be provided to Section 409A of you without causing you to incur the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” additional 20% tax under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) 409A. It is intended that each installment of any benefits or payments severance pay provided hereunder constitute for in this Agreement is a separate payment “payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It For the avoidance of doubt, it is further intended that severance payments hereunder set forth in this Agreement satisfy, to the greatest extent possible, the exemptions exceptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section Regulation Sections 1.409A-1(b)(4) and 1.409A-1(b)(9). If the Company (as or, if applicable, the successor entity thereto) determines that any payments or benefits constitute “deferred compensation” under Section 409A and you are, on the termination of service, a “short-specified employee” of the Company or any successor entity thereto, as such term deferral”is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments and Section 1.409A-1(b)(9benefits shall be delayed until the earlier to occur of: (a) the date that is six months and one day after your Separation From Service, or (as b) the date of your death (such applicable date, the “separation pay due to involuntary separationSpecified Employee Initial Payment Date”). The parties intend On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (i) pay to you a lump sum amount equal to the sum of the payments and benefits that all you would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of such amounts had not been so delayed pursuant to this Section and (ii) commence paying the balance of the payments and benefits and payments in accordance with the applicable payment schedules set forth in this Agreement. All reimbursements provided under this Agreement shall be exempt from, or comply with, subject to the requirements following requirements: (i) the amount of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such benefits provided or reimbursable expenses eligible for reimbursement, or the provision of any in-kind benefit, incurred in one calendar taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year year, (except for any lifetime or other aggregate limitation applicable to medical expenses)ii) all reimbursements shall be paid as soon as administratively practicable, but in no event shall any expenses reimbursement be reimbursed paid after the last day of the calendar taxable year following the calendar taxable year in which the Executive incurred such expensesexpense was incurred, and in no event shall any (iii) the right to reimbursement or the provision of any in-kind benefit be benefits is not subject to liquidation or exchange for another any other benefit.. It is intended that all payments and benefits under this Agreement shall either comply with or be exempt from the requirements of Section 409A, and any ambiguity contained herein shall be interpreted in such manner so as to avoid adverse personal tax consequences under Section 409A.

409A. (a) To This Agreement is intended to provide payments that are exempt from and/or that comply with the extent required by provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and related regulations and Treasury pronouncements (“Section 409A”), all and this Agreement shall be interpreted accordingly (it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause 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 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,” “Date of Termination” and correlative phrases for purposes of this Agreement or other similar term shall be construed refer to require a Executive’s “separation from service” (as defined in within the meaning of Section 1.409A-1(h) of the Treasury regulations after giving effect 409A and Treas. Reg. Section 1.409A-l(h). Notwithstanding anything herein to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreementcontrary, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from if on the date of the Executive’s separation from service (Executive is a “specified employee,” as defined in Section 18(a) above) from the Company; 409A, then any portion of any payments, benefits or (y) the date of the Executive’s death following such separation from service; provided, however, other consideration under this Agreement that such deferral shall only are determined to be effected subject to the extent required to avoid adverse additional tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under provided by Section 409A(a)(1)(B) of the Code in if not delayed as required by Section 409A(a)(2)(B)(i) of the absence Code shall be delayed until the first (1st) business day of the seventh (7th) month following Executive’s separation from service date (or, if earlier, Executive’s date of death), and the total of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph delayed amounts shall be paid to the Executive or the Executive’s beneficiary in one as a lump sumsum on such date. For the purposes of this Section 18clarification, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment any portion of any benefits separation allowance or payments provided hereunder constitute a separate other payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It due to Executive under this Agreement that is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of not considered deferred compensation under Section 409A of through either the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”” exception pursuant to Treasury Reg. 1.409A-l(b)(4) and Section 1.409A-1(b)(9) (as or the “separation pay due pay” exception pursuant to involuntary separation”)Treasury Reg. The parties intend that all 1.409A-l(b)(9) will not be subject to the benefits and payments 6 month delay described in this paragraph as provided under this Agreement shall be exempt fromSection 409A. With respect to any expense, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under provided pursuant to this Agreement is determined to be subject to that constitutes a “deferral of compensation” within the meaning of Section 409A of the Code409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect (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 taxable year calendar year, (except iii) the reimbursements for any lifetime or other aggregate limitation applicable expenses for which Executive is entitled to medical expenses), in no event shall any expenses be reimbursed after shall be made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesapplicable expense is incurred, and in no event shall any (iv) the right to payment or reimbursement or the provision of any in-kind benefit benefits hereunder may not be subject 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 liquidation hold the Company harmless for any and all taxes, penalties or exchange for another benefitother 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. (a) To This Agreement is intended to provide payments that are exempt from and/or that comply with the extent required by provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and related regulations and Treasury pronouncements ("Section 409A"), all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed interpreted accordingly (it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause Executive to require incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a “manner that maintains, to the extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a "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 1.409A-1(h) 409A, then any portion of the Treasury regulations after giving effect any payments, benefits or other consideration under this Agreement that are determined to be subject to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained additional tax provided by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in if not delayed as required by Section 409A(a)(2)(B)(i) of the absence Code shall be delayed until the first (1st) business day of the seventh (7th) month following Executive's separation from service date (or, if earlier, Executive's date of death), and the total of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph delayed amounts shall be paid to the Executive or the Executive’s beneficiary in one as a lump sumsum on such date. For the purposes of this Section 18clarification, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment any portion of any benefits separation allowance or payments provided hereunder constitute a separate other payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided Executive under this Agreement shall be exempt from, or comply with, the requirements of that is not considered deferred compensation under Section 409A of through either the Code. (d"short- term deferral" exception pursuant to Treasury Reg. 1.409A-l(b)(4) To or the extent "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 expense, reimbursement or the provision of any in-kind benefit under provided pursuant to this Agreement is determined to be subject to that constitutes a "deferral of compensation" within the meaning of Section 409A of the Code409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect (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 taxable year calendar year, (except iii) the reimbursements for any lifetime or other aggregate limitation applicable expenses for which Executive is entitled to medical expenses), in no event shall any expenses be reimbursed after shall be made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesapplicable expense is incurred, and in no event shall any (iv) the right to payment or reimbursement or the provision of any in-kind benefit benefits hereunder may not be subject 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 liquidation hold the Company harmless for any and all taxes, penalties or exchange for another benefitother 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. (a) To the maximum extent required by permitted, the Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code Section 409A (“Section 409A”) but in any event will be interpreted to comply with Section 409A. In the event this Agreement or any benefit paid under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents to the Company’s adoption of such conforming amendments as the CodeCompany deems advisable or necessary, all references in its sole discretion (but without an obligation to “termination do so), to comply with Section 409A and avoid the imposition of employment,” “Date of Termination” and correlative phrases for taxes under Section 409A. For purposes of this Agreement shall be construed to require Agreement, a termination of employment means a “separation from service” as defined in Section 409A. Each payment made pursuant to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect 409A), then solely to the presumptions contained therein). (b) To extent necessary to comply with Section 409A and avoid the extent that (i) any payments or benefits to which the Executive becomes entitled imposition of taxes under this AgreementSection 409A, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute shall defer payment of “nonqualified deferred compensation compensation” subject to Section 409A payable as a result of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the within six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death months following such “separation from service; provided, however, that such deferral shall only be effected to ” until the extent required to avoid adverse tax treatment to the Executive, including earlier of (without limitationi) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last first business day of the calendar year seventh month following Employee’s “separation from service,” or (ii) ten (10) days after the calendar year in which the Executive incurred Company receives written confirmation of Employee’s death. Any such expenses, and in no event delayed payments shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitmade without interest.

409A. (a) To the extent required by This Agreement will be administered, interpreted and construed in compliance with Section 409A of the CodeInternal Revenue Code and the regulations and other guidance promulgated thereunder (“Section 409A”), all references including any exemption thereunder. With respect to payments, if any, subject to Section 409A (and not excepted therefrom), each such payment is paid as a result of a permissible distribution event, and at a specified time, consistent with Section 409A. Executive has no right to, and there shall not be, any acceleration or deferral with respect to payments hereunder. Executive acknowledges and agrees that Employer shall not be liable for, and nothing provided or contained in this Agreement will obligate or cause Employer to be liable for, any tax, interest or penalties imposed on Executive related to or arising with respect to any violation of Section 409A. For purposes of this Agreement, any reference to “termination of employment,”, “termination” “Date of Termination” and correlative phrases for purposes of this Agreement or similar reference shall be construed to require be a reference to “separation from service” within the meaning of Section 409A. (b) Notwithstanding any other provision of this Agreement to the contrary, to the extent that any amount payable or benefit to be provided under this Agreement constitutes an amount payable or benefit to be provided under a “nonqualified deferred compensation plan” (as defined in Section 409A) that is not exempt from Section 409A, and such amount or benefit is payable or to be provided as a result of a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein409A). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” (as defined and determined under Section 409A and any relevant procedures that either Employer Entity may establish) at the time of her “separation from service,” then such payment or benefit will not be made or provided to Executive until the Codeday after the date that is six months following Executive’s “separation from service,” at which time all payments or benefits that otherwise would have been paid or provided to Executive under this Agreement during that six-month period, then but were not paid or provided because of this clause, will be paid or provided, with any cash payment to be made in a single lump sum (without any interest with respect to that six-month period). This six-month delay will cease to be applicable if Executive “separates from service” due to death or if Executive dies before the six-month period has elapsed, in which event any such payments or benefits shall not will be made paid or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the provided to Executive’s separation from service (estate as defined contemplated in Section 18(a) 9, above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

409A. (a) To The intent of the extent required by parties is that payments and benefits under this Agreement which are subject to the provisions of Section 409A of the Internal Revenue code of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively "Code Section 409A") shall comply with Code Section 409A and, all references accordingly, to “termination of employment,” “Date of Termination” and correlative phrases for purposes of the maximum extent permitted, this Agreement shall be construed interpreted to require a “separation from service” be in compliance therewith. If the Employee notifies the Employer (with specificity as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). reason therefor) that the Employee believes that any provision of this Agreement (bor of any award of compensation, including equity compensation or benefits) would cause the Employee to incur any additional tax or interest under Code Section 409A and the Employer concurs with such belief or the Employer (without any obligation whatsoever to do so) independently makes such determination, the Employer shall, after consulting with the Employee, reform such provision to attempt to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that (i) any payments provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Employee and the Employer of the applicable provision without violating the provisions of Code Section 409A. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits subject to which the Executive becomes entitled under Code Section 409A upon or following a termination of employment unless such termination is also a "Separation from Service" as defined in Exhibit B hereto and, for purposes of any such provision of this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s references to a "termination," "termination of employment with employment" or like terms shall mean such "Separation from Service." If the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive Employee is deemed at on the time date of such termination of employment to be a “"specified employee” " within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of the Code, then a "Separation from Service," no such payments payment or benefits benefit shall not be made or commence until provided prior to the earliest earlier of (xA) the expiration of the six (6) month and one day 6)-month period measured from the date of such "Separation from Service" of the Executive’s separation from service Employee, and (as defined in Section 18(a) above) from the Company; or (yB) the date of the ExecutiveEmployee’s death following such separation from service; provideddeath, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Code Section 409A(a)(1)(B) of the Code in the absence of such deferral. 409A. Upon the expiration of the applicable deferral foregoing delay period, any all payments which and benefits delayed pursuant to this Section 18(x) (whether they would have otherwise been made during that period (whether payable in a single sum or in installments) installments in the absence of this paragraph such delay) shall be paid or reimbursed to the Executive or the Executive’s beneficiary Employee in one a lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) remaining payments and Section 1.409A-1(b)(9) (as “separation pay benefits due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, paid or comply withprovided in accordance with the normal payment dates specified for them herein. For purposes of Code Section 409A, the requirements Employee’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit separate and distinct payments. Whenever a payment under this Agreement is determined specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be subject to Section 409A within the sole discretion of the Code, the amount of Employer. Notwithstanding any such expenses eligible for reimbursement, or the other provision of any in-kind benefit, in one calendar year shall not affect this Agreement to the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses)contrary, in no event shall any expenses be reimbursed after the last day payment under this Agreement that constitutes "nonqualified deferred compensation" for purposes of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit Code Section 409A be subject to liquidation or exchange for another benefit.offset by any other amount unless otherwise permitted by Code Section 409A.

409A. (a) The intent of the parties is that the payment of any Amounts or benefits under this Agreement which are subject to the provisions of Code Section 409A shall comply with Code Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to comply therewith. To the extent required by Code Section 409A 409A, a cessation or termination of the Code, all references Employee’s employment shall not be deemed to “termination of employment,” “Date of Termination” and correlative phrases have occurred for purposes of Section 7 or Section 9 or any other provision of this Agreement shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) providing for the payment of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments Amounts or benefits subject to which the Executive becomes entitled under this Agreement, Code Section 409A upon or under any other plan, program following a cessation or agreement maintained by the Employer, in connection with the Executive’s termination of employment with unless such termination is also a Separation from Service. If the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive Employee is deemed at the time of such his termination of employment to be a “specified employee” within the meaning of that term under Code Section 409(a)(2)(B)(i), then with regard to any payment or the provision of any benefit to the Employee that is considered deferred compensation under Code Section 409A payable on account of the Codea Separation from Service, then no such payments payment or benefits benefit shall not be made or commence until provided prior to the earliest earlier of (xA) the expiration of the six (6) month and one day period measured from the date time of such Separation from Service of the Executive’s separation from service Employee, and (as defined in Section 18(a) above) from the Company; or (yB) the date time of the ExecutiveEmployee’s death following such separation from service; provideddeath, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to under Code Section 409A. For the Executiveavoidance of doubt, including (without limitation) the additional twenty percent (20%) tax parties intend that the Manager Payment Time is a “specified time” for which the Executive would otherwise be liable under purposes of Code Section 409A(a)(1)(B) of the Code in the absence of such deferral409A(a)(2)(A)(iv). Upon the expiration of the applicable deferral foregoing delay period, any all payments which and benefits delayed pursuant to this Section 14(k) (whether they would have otherwise been made during that period (whether payable in a single sum or in installments) installments in the absence of this paragraph such delay) shall be paid or reimbursed to the Executive Isthmus or the Executive’s beneficiary Employee in one a lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) remaining payments and Section 1.409A-1(b)(9) (as “separation pay benefits due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, paid or comply withprovided in accordance with the normal payment times specified for them herein. For purposes of Code Section 409A, the requirements right of Section 409A of the Code. (d) To the extent any expense reimbursement Isthmus or the provision Employee to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of any in-kind benefit separate and distinct payments. Whenever a payment under this Agreement is determined to specifies a payment period, the actual time of payment within that specified period shall be subject to Section 409A within the sole discretion of the Code, the amount of Employer. Notwithstanding any such expenses eligible for reimbursement, or the other provision of any in-kind benefit, in one calendar year shall not affect this Agreement to the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses)contrary, in no event shall any expenses be reimbursed after the last day payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit Code Section 409A be subject to liquidation offset by any other Amount unless otherwise permitted by Code Section 409A. If the amount of the Profit-Sharing Payment depends in part on the determination of an Approved Appraiser set forth in a Valuation Report, and the Employer or exchange for another benefitthe Employee petitions a court of competent jurisdiction to correct or vacate such determination, then, to the extent permitted by Code Section 409A, the portion of the Profit-Sharing Payment that is not dependent upon the Fair Market Value of the asset subject to the Valuation Report shall be payable to the Employee at the Manager Payment Time, and the remaining portion of the Profit-Sharing Payment (the “Disputed Portion”) shall be payable in accordance with Treas. Reg. Section 1.409A-3(g) (Disputed Payments and Refusals to Pay).

409A. It is intended that this Agreement will comply with Section 409A of the Internal Revenue Code of 1986, as amended (athe “Code”) To (and any regulations and guidelines issued thereunder), to the extent required by the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure to act, pursuant to this Section 12.09 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A of the Code. Notwithstanding any provision to the contrary in this Agreement, all references to “termination if the Executive is deemed on the date of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a his “separation from service” (as defined in within the meaning of Treasury Regulation Section 1.409A-1(h)) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” within the meaning of that term under Section 409A 409A(a)(2)(B) of the Code, then with regard to any payment that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after taking into account the applicable provisions of Treasury Regulation Section 1.409A-1(b)(9)(iii)), the portion, if any, of such payments or benefits payment so required to be delayed shall not be made or commence until prior to the earliest earlier of (xi) the expiration of the six (6) month and one day 6)-month period measured from the date of the Executive’s his “separation from service (as defined in Section 18(a) above) from the Company; service” or (yii) the date of his death (the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral“Delay Period”). Upon the expiration of the applicable deferral periodDelay Period, any all payments which and benefits delayed pursuant to this Section (whether they would have otherwise been made during that period (whether payable in a single sum or in installments) installments in the absence of this paragraph such delay) shall be paid or reimbursed to the Executive or the Executive’s beneficiary in one a lump sum. For the purposes of , and any remaining payments due under this Section 18, the term “specified employee” means an individual determined by the Employer to Agreement shall be a specified employee under Treasury regulation Section 1.409A-1(i) paid in accordance with the policies of the Employer. (c) It is intended that normal payment dates specified for them herein. Whenever payments under this Agreement are to be made in installments, each such installment of any benefits or payments provided hereunder constitute shall be deemed to be a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To . In no case will compliance with this Section by the extent Company constitute a breach of the Company’s obligations under this Agreement. With respect to any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A arrangements of the CodeCompany and its subsidiaries provided for herein that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the following conditions shall be applicable: (i) the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefitbenefits provided, under any such arrangement in one calendar year shall may not affect the expenses amount eligible for reimbursement reimbursement, or in-kind benefits to be provided, under such arrangement in any other taxable calendar year (except for any lifetime that the health and dental plans may impose a limit on the amount that may be reimbursed or other aggregate limitation applicable to medical expensespaid), in no event shall (ii) any expenses reimbursement must be reimbursed after made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesexpense was incurred, and in no event shall any (iii) the right to reimbursement or the provision of any in-kind benefit be benefits is not subject to liquidation or exchange for another benefit.

409A. (a) To the extent required by Section 409A of the Code, all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of Notwithstanding anything in this Agreement shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18contrary, the term “specified employee” means an individual determined by the Employer following provisions shall apply to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt fromby SMARTBANK to XXXXXXX: (a) The payment, or comply withcommencement of a series of payments, hereunder of any non-qualified deferred compensation (within the requirements meaning of Section 409A of the CodeInternal Revenue Code (“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 the parties’ intention that the 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 any penalty taxes under Section 409A, in no event whatsoever shall SMARTBANK be liable for any additional tax, interest, or penalties that may be imposed on XXXXXXX as a result of Section 409A or any damages for failing to comply with Section 409A (other than for withholding obligations or other obligations applicable to employers, if any, under Section 409A). (d) To the extent any expense reimbursement or the provision of any in-kind benefit No deferred compensation payments provided for under this Agreement is determined shall be accelerated to XXXXXXX. (e) Any installment payments provided for in this Agreement shall be subject to treated as separate payments for purposes of Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.409A.

409A. (a) To It is intended that this Agreement will comply with Section 409A and Section 457A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and guidelines promulgated thereunder (collectively, “Section 409A”), to the extent required by the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A or Section 457a, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure to act pursuant to this Section 12.14 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A or Section 457A of the Code. (b) Notwithstanding any provision to the contrary in this Agreement, all references to “termination if the Executive is deemed on the date of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a his or her “separation from service” (as defined in within the meaning of Treas. Reg. Section 1.409A-1(h)) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment or benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service” that is required to be delayed pursuant to Section 409A(a)(2)(B) of the CodeCode (after taking into account any applicable exceptions to such requirement), then such payments payment or benefits benefit shall not be made or commence until provided on the earliest date that is the earlier of (xi) the expiration of the six (6) month and one day 6)-month period measured from the date of the Executive’s 's “separation from service (as defined in Section 18(a) above) from the Company; service,” or (yii) the date of the Executive’s 's death following such separation from service; provided, however, that such deferral shall only be effected to (the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral“Delay Period”). Upon the expiration of the applicable deferral periodDelay Period, any all payments which and benefits delayed pursuant to this Section 12.14 (whether they would have otherwise been made during that period (whether payable in a single sum or in installments) installments in the absence of this paragraph such delay) shall be paid or reimbursed to the Executive in a lump sum and any remaining payments and benefits due under this Agreement shall be paid or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) provided in accordance with the policies of the Employernormal payment dates specified for them herein. (c) It is intended that each installment of With respect to any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A arrangements of the CodeCompany and its subsidiaries that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the following conditions shall be applicable: (i) the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefitbenefits provided, under any such arrangement in one calendar year shall may not affect the expenses amount eligible for reimbursement reimbursement, or in-kind benefits to be provided, under such arrangement in any other taxable calendar year (except for any lifetime that the health and dental plans may impose a limit on the amount that may be reimbursed or other aggregate limitation applicable to medical expensespaid), in no event shall (ii) any expenses reimbursement must be reimbursed after made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesexpense was incurred, and in no event shall any (iii) the right to reimbursement or the provision of any in-kind benefit be benefits is not subject to liquidation or exchange for another benefit.. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days after termination of employment”), the actual date of payment within the specified period shall be within the sole discretion of the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A.

409A. (a) To the extent required by Section 409A of the Code, all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment all of any benefits or the payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions payable under this Agreement be exempt from the application of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), and if not so exempt that they comply with the provisions of Section 409A, and this Agreement will be construed and interpreted accordingly. Notwithstanding any provision to the contrary in this Agreement, if you are deemed by the Company at the time of your separation from service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon separation from service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then to the extent delayed 000 Xxxxxxx Xxxxxxx, San Rafael, California 94903 PH0NE+1415507-5000 I FAX+1415507-5100 I xxx.xxxxxxxx.xxx commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to you prior to the earliest of (a) the expiration of the six-month period measured from the date of your separation from service with the Company, (b) the date of your death or (c) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to you, and any state law remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. Any amount paid under this Agreement that satisfies the requirements of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a the “short-term deferral”” rule set forth in Section 1.409A-1(b)(4) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the CodeTreasury Regulations will not constitute deferred payments. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

409A. (a) To This Agreement is intended to provide payments that are exempt from and/or that comply with the extent required by provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and related regulations and Treasury pronouncements (“Section 409A”), all and this Agreement shall be interpreted accordingly (it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause 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 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,” “Date of Termination” and correlative phrases for purposes of this Agreement or other similar term shall be construed refer to require a Executive’s “separation from service” (as defined in within the meaning of Section 409A and Treas. Reg. Section 1.409A-1(h) of the Treasury regulations after giving effect ). Notwithstanding anything herein to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreementcontrary, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from if on the date of the Executive’s separation from service (Executive is a “specified employee,” as defined in Section 18(a) above) from the Company; 409A, then any portion of any payments, benefits or (y) the date of the Executive’s death following such separation from service; provided, however, other consideration under this Agreement that such deferral shall only are determined to be effected subject to the extent required to avoid adverse additional tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under provided by Section 409A(a)(1)(B) of the Code in if not delayed as required by Section 409A(a)(2)(B)(i) of the absence Code shall be delayed until the first (1st) business day of the seventh (7th) month following Executive’s separation from service date (or, if earlier, Executive’s date of death), and the total of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph delayed amounts shall be paid to the Executive or the Executive’s beneficiary in one as a lump sumsum on such date. For the purposes of this Section 18clarification, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment any portion of any benefits separation allowance or payments provided hereunder constitute a separate other payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It due to Executive under this Agreement that is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of not considered deferred compensation under Section 409A of through either the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”” exception pursuant to Treasury Reg. 1.409A-1(b)(4) and Section 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 “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt fromSection 409A. With respect to any expense, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under provided pursuant to this Agreement is determined to be subject to that constitutes a “deferral of compensation” within the meaning of Section 409A of the Code409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect (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 taxable year calendar year, (except iii) the reimbursements for any lifetime or other aggregate limitation applicable expenses for which Executive is entitled to medical expenses), in no event shall any expenses be reimbursed after shall be made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesapplicable expense is incurred, and in no event shall any (iv) the right to payment or reimbursement or the provision of any in-kind benefit benefits hereunder may not be subject 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 liquidation hold the Company harmless for any and all taxes, penalties or exchange for another benefitother 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. (a) To In the extent required by event that the payments or benefits set forth in Section 4 of this Agreement constitute “non-qualified deferred compensation” subject to Section 409A of the Code, all references then the following conditions apply to “such payments or benefits: (i) Any termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require Executive’s employment triggering payment under Section 4 must constitute a “separation from service” (as defined in under Section 1.409A-1(h409A(a)(2)(A)(i) of the Treasury regulations after giving effect to the presumptions contained therein). (bCode and Treas. Reg. §1.409A-1(h) before distribution of such benefits can commence. To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the termination of Executive’s termination employment does not constitute a separation of employment with the Company constitute deferred compensation subject to service under Section 409A 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) (as the result of further services that are reasonably anticipated to be provided by Executive to Company at the time Executive’s employment terminates), any such payments under Section 4 that constitute deferred compensation under Section 409A shall be delayed until after the date of a subsequent event constituting a separation of service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h). For purposes of clarification, this Section 7(a) shall not cause any forfeiture of benefits on Executive’s part, but shall only act as a delay until such time as a “separation from service” occurs. (ii) Notwithstanding any other provision with respect to the Executive is deemed timing of payments under Section 4 if, at the time of such termination of employment Executive’s termination, Executive is deemed to be a “specified employee” under of Company (within the meaning of Section 409A 409A(a)(2)(B)(i) of the Code), then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall limited only be effected to the extent required necessary to avoid adverse tax treatment to comply with the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under requirements of Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period409A, any payments to which would have Executive may become entitled under Section 4 which are subject to Section 409A (and not otherwise been made during that period exempt from its application) shall be withheld until the first (whether in a single sum or in installments1st) in business day of the absence seventh (7th) month following the termination of this paragraph Executive’s employment, at which time Executive shall be paid an aggregate amount equal to the accumulated, but unpaid, payments otherwise due to Executive or under the Executive’s beneficiary in one lump sum. For the purposes terms of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer4. (ciii) It is intended that each installment of any the payments and benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under 4 of this Agreement shall be exempt from, or comply with, the requirements treated as a separate “payment” for purposes of Section 409A of 409A. Neither Company nor Executive shall have the Code. (d) To right to accelerate or defer the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount delivery of any such expenses eligible for reimbursementpayments or benefits except to the extent specifically permitted or required by Section 409A. (iv) Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted and at all times administered in a manner that avoids the inclusion of compensation in income under Section 409A, or the provision payment of any in-kind benefitincreased taxes, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime excise taxes or other aggregate limitation applicable penalties under Section 409A. The parties intend this Agreement to medical expenses)be in compliance with Section 409A. Executive acknowledges and agrees that Company does not guarantee the tax treatment or tax consequences associated with any payment or benefit arising under this Agreement, in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right including but not limited to reimbursement or the provision of any in-kind benefit be subject consequences related to liquidation or exchange for another benefit.Section 409A.

409A. (a) To the extent required by Section 409A of the Code, all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the EmployerCompany, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a14(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installmentsin stallments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer Company to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the EmployerCompany. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

409A. (a) To This Agreement is intended to provide payments that are exempt from and/or that comply with the extent required by provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and related regulations and Treasury pronouncements (“Section 409A”), all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed interpreted accordingly (it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A and the applicable policies and guidelines of the Company). If any provision of this Agreement would cause Employee to require incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. Notwithstanding anything herein to the contrary, if on the date of Employee’s separation from service Employee is a “separation from servicespecified employee,” (as defined in Section 1.409A-1(h) 409A, then any portion of the Treasury regulations after giving effect any payments, benefits or other consideration under this Agreement that are determined to be subject to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained additional tax provided by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration if not delayed as required by Section 409A(a)(2)(B)(i) of the applicable deferral periodCode shall be delayed until the first (1st) business day of the seventh (7th) month following Employee’s separation from service date (or, any payments which would have otherwise been made during that period (whether in a single sum or in installmentsif earlier, Employee’s date of death) in the absence of this paragraph and shall be paid to as a lump sum on such date. Employee acknowledges and agrees that Employee has obtained no advice from the Executive 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 Executivetax consequences, if any, of Employee’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies receipt of the Employer. (c) It payments, benefits and other consideration provided for in this Agreement. Employee further acknowledges and agrees that Employee is intended personally responsible for the payment of all federal, state and local taxes that each installment are due, or may be due, for any payments and other consideration received by Employee under this Agreement. Employee agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Employee is, or may become, obligated to pay on account of any benefits or payments made and other consideration provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided Employee under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the CodeAgreement. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

409A. (a) To Notwithstanding anything to the extent required by contrary in this Agreement, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A 409A. For purposes of Section 409A, each of the Code, all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to require a “separation from service” (Execution Version Employment Agreement Xxxx Xxxxxxx negotiate in good faith to make amendments to the Agreement, as defined in the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 1.409A-1(h) 409A. Notwithstanding anything else herein, to the extent any of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or Severance Pay benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) the if Executive is deemed at determined by the time of such termination of employment Company to be a “"specified employee” under Section 409A " for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the CodeSeverance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), then commencement of such payments or portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall not be made or commence until payable in a lump sum on the earliest of (x) first business day following the expiration of the such six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, and any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the Executive maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or the Executive’s beneficiary in one lump sumTreasury Regulation § 1.409A-l(b)(4). For the purposes The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Section 18Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) construed, and interpreted in accordance with the policies of the Employersuch intent. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

409A. (a) To the extent required by Section 409A of the Code, all references This Agreement is intended to “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a “separation provide payments that are exempt from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent and/or that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection comply with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application provisions of Section 409A of the Internal Revenue Code of 1986, as amended (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”the "Code") and related regulations and Treasury pronouncements ("Section 1.409A-1(b)(9) 409A"), and this Agreement shall be interpreted accordingly (as “separation pay due to involuntary separation”it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). The 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 intend hereto will in good faith attempt to reform, the provision in a manner that all maintains, to the benefits and payments provided extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be exempt from, designated as a "separate payment" within the meaning of the Section 409A. All references herein to Executive's "termination of employment" or comply with, other similar term shall refer to Executive's "separation from service" within the requirements meaning of Section 409A and Treas. Reg. Section l.409A-l(h). Notwithstanding anything herein to the contrary, if on the date of the Code. (d) To the extent Executive's separation from service Executive is a "specified employee," as defined in Section 409A, then any expense reimbursement or the provision portion of any in-kind benefit payments, benefits or other consideration under this Agreement is that are determined to be subject to the additional tax provided by Section 409A(a)(l)(B) of the Code if not delayed as required by Section 409A(a)(2)(B)(i) of the Code shall be delayed until the first (1st) business day of the 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 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 of through either the Code, the amount of any such expenses eligible for reimbursement, "short­ term deferral" exception pursuant to Treasury Reg. l.409A-l(b)(4) or the provision of "separation pay" exception pursuant to Treasury Reg. l.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 benefitbenefit provided pursuant to this Agreement that constitutes a "deferral of compensation" within the meaning of Section 409A, in one calendar year shall not affect (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 taxable year calendar year, (except iii) the reimbursements for any lifetime or other aggregate limitation applicable expenses for which Executive is entitled to medical expenses), in no event shall any expenses be reimbursed after shall be made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesapplicable expense is incurred, and in no event shall any (iv) the right to payment or reimbursement or the provision of any in-kind benefit benefits hereunder may not be subject 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 liquidation hold the Company harmless for any and all taxes, penalties or exchange for another benefitother 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. (a) To It is intended that the extent required by payments and benefits under this Agreement comply with Section 409A of the CodeCode (together with the Treasury Regulations relating thereto, all references “Section 409A”), or satisfy the requirements for an exemption to “termination Section 409A, in each case, to the extent applicable to this Agreement and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith (or to be in satisfaction of employment,” “Date of Termination” and correlative phrases 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, the Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement Agreement, no Termination Date shall be construed deemed to require have occurred, and no payment otherwise payable upon a termination of the Executive’s employment shall be paid to the Executive under this Agreement unless and until the Executive’s termination of employment constitutes a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with from the Company constitute deferred compensation subject to within the meaning of Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employeeSeparation from Service”). Any payments described in this Agreement that qualify for the “short-term deferral” under exception from Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined described in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i)1.409A-1(b)(4) will be paid under such exception. It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii) and any state law the application of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “the short-term deferral”deferral exception), each payment under this Agreement will be treated as a separate payment. Notwithstanding anything to the contrary in this Agreement (whether under this Agreement or otherwise), to the extent delayed commencement of any portion of the payments to be made to the Executive upon his Separation from Service is required to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of 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 1.409A-1(b)(9) (as “separation pay due 409A, amounts reimbursable to involuntary separation”). The parties intend that all the benefits and payments provided Executive under this Agreement shall be exempt from, paid to the Executive on or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after before the last day of the calendar year following the calendar year in which the Executive expense was incurred such expenses, and in no event shall any right to the amount of expenses eligible for reimbursement or the provision of any (and in-kind benefit benefits provided to the Executive) during any one year may not affect amounts reimbursable or provided in any subsequent year and may not be subject to liquidation liquidated or exchange exchanged for another any other benefit.

409A. Notwithstanding anything herein to the contrary, to the maximum extent permitted by applicable law, amounts payable to Executive pursuant to Section 8(c) herein shall be made in reliance upon Treas. Reg. Section 1.409A-1(b)(9) (aSeparation Pay Plans) To or Treas. Reg. Section 1.409A-1(b)(4) (Short-Term Deferrals). For this purpose each monthly payment shall be considered a separate and distinct installment payment. However, to the extent required by Section 409A of the Code, all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a “separation from service” (any such payments are treated as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute non-qualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), then (i) no amount shall be payable pursuant to Section 8(c) unless Executive’s termination of employment constitutes a “separation from service” within the meaning of Treas. Reg. Section 1.409A-1(h) and (ii) the if Executive is deemed at the time of such termination of employment Executive’s separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent delayed commencement of any portion of the termination benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Executive’s termination benefits shall not be provided to Executive prior to the earlier of (A) the expiration of the six-month period measured from the date of Executive’s “separation from service” with the Company (as such term is defined in the Treasury Regulations issued under Section 409A of the Code, then such payments ) or benefits shall not be made or commence until the earliest of (xB) the expiration of the six (6) month and one day period measured from the date of Executive’s death. Upon the earlier of such dates, all payments deferred pursuant to this Section 32 shall be paid in a lump sum to Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein. The determination of whether Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) Company in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treas. Reg. Section 1.409A-1(i) and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”successor provision thereto). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

409A. (a) To This Agreement is intended to provide payments that are exempt from and/or that comply with the extent required by provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and related regulations and Treasury pronouncements (“Section 409A”), all and this Agreement shall be interpreted accordingly (it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause Employee to incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a “separate payment” within the meaning of the Section 409A. All references herein to Employee’s “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement or other similar term shall be construed refer to require a Employee’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 Employee’s separation from service Employee is a “specified employee,” as defined in Section 1.409A-1(h) 409A, then any portion of the Treasury regulations after giving effect any payments, benefits or other consideration under this Agreement that are determined to be subject to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained additional tax provided by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in if not delayed as required by Section 409A(a)(2)(B)(i) of the absence Code shall be delayed until the first (1st) business day of the seventh (7th) month following Employee’s separation from service date (or, if earlier, Employee’s date of death), and the total of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph delayed amounts shall be paid to the Executive or the Executive’s beneficiary in one as a lump sumsum on such date. For the purposes of this Section 18clarification, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment any portion of any benefits separation allowance or payments provided hereunder constitute a separate other payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It due to Employee under this Agreement that is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of not considered deferred compensation under Section 409A of through either the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”” exception pursuant to Treasury Reg. 1.409A-1(b)(4) and Section 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 “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt fromSection 409A. With respect to any expense, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under provided pursuant to this Agreement is determined to be subject to that constitutes a “deferral of compensation” within the meaning of Section 409A of the Code409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect (i) the expenses eligible for reimbursement or in-kind benefits provided to Employee must be incurred during the Employment Period (or applicable survival period), (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Employee during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Employee in any other taxable year calendar year, (except iii) the reimbursements for any lifetime or other aggregate limitation applicable expenses for which Employee is entitled to medical expenses), in no event shall any expenses be reimbursed after shall be made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesapplicable expense is incurred, and in no event shall any (iv) the right to payment or reimbursement or the provision of any in-kind benefit benefits hereunder may not be subject liquidated or exchanged for any other benefit. Employee acknowledges and agrees that Employee 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 Employee’s receipt of the payments, benefits and other consideration provided for in this Agreement. Employee further acknowledges and agrees that Employee is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Employee under this Agreement. Employee agrees to liquidation hold the Company harmless for any and all taxes, penalties or exchange for another benefitother assessments that Employee is, or may become, obligated to pay on account of any payments made and other consideration provided to Employee under this Agreement.

409A. (a) To the extent required by It is intended that this Agreement will comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and guidelines promulgated thereunder (collectively, all references “Section 409A”), to “termination of employment,” “Date of Termination” the extent the Agreement is subject thereto, and correlative phrases for purposes of this the Agreement shall be construed interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to require comply with Section 409A, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure to act pursuant to this Section 12.14 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A or Section 457A of the Code. (b) Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed on the date of his or her “separation from service” (as defined in within the meaning of Treas. Reg. Section 1.409A-1(h)) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment or benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service” that is required to be delayed pursuant to Section 409A(a)(2)(B) of the CodeCode (after taking into account any applicable exceptions to such requirement), then such payments payment or benefits benefit shall not be made or commence until provided on the earliest date that is the earlier of (xi) the expiration of the six (6) month and one day 6)-month period measured from the date of the Executive’s 's “separation from service (as defined in Section 18(a) above) from the Company; service,” or (yii) the date of the Executive’s 's death following such separation from service; provided, however, that such deferral shall only be effected to (the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral“Delay Period”). Upon the expiration of the applicable deferral periodDelay Period, any all payments which and benefits delayed pursuant to this Section 12.14 (whether they would have otherwise been made during that period (whether payable in a single sum or in installments) installments in the absence of this paragraph such delay) shall be paid or reimbursed to the Executive in a lump sum and any remaining payments and benefits due under this Agreement shall be paid or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) provided in accordance with the policies of the Employernormal payment dates specified for them herein. (c) It is intended that each installment of With respect to any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A arrangements of the CodeCompany and its subsidiaries that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the following conditions shall be applicable: (i) the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefitbenefits provided, under any such arrangement in one calendar year shall may not affect the expenses amount eligible for reimbursement reimbursement, or in-kind benefits to be provided, under such arrangement in any other taxable calendar year (except for any lifetime that the health and dental plans may impose a limit on the amount that may be reimbursed or other aggregate limitation applicable to medical expensespaid), in no event shall (ii) any expenses reimbursement must be reimbursed after made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesexpense was incurred, and in no event shall any (iii) the right to reimbursement or the provision of any in-kind benefit be benefits is not subject to liquidation or exchange for another benefit.. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days after termination of employment”), the actual date of payment within the specified period shall be within the sole discretion of the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A.

409A. (a) To It is intended that this Agreement will comply with Section 409A and Section 457A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and guidelines promulgated thereunder (collectively, “Section 409A”), to the extent required by the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A or Section 457a, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure to act pursuant to this Section 12.14 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A or Section 457A of the Code. (b) Notwithstanding any provision to the contrary in this Agreement, all references to “termination if the Executive is deemed on the date of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a his or her “separation from service” (as defined in within the meaning of Treas. Reg. Section 1.409A-1(h)) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment or benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service” that is required to be delayed pursuant to Section 409A(a)(2)(B) of the CodeCode (after taking into account any applicable exceptions to such requirement), then such payments payment or benefits benefit shall not be made or commence until provided on the earliest date that is the earlier of (xi) the expiration of the six (6) month and one day 6)-month period measured from the date of the Executive’s 's “separation from service (as defined in Section 18(a) above) from the Company; service,” or (yii) the date of the Executive’s 's death following such separation from service; provided, however, that such deferral shall only be effected to (the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral“Delay Period”). Upon the expiration of the applicable deferral periodDelay Period, any all payments which and benefits delayed pursuant to this Section 12.14 (whether they would have otherwise been made during that period (whether payable in a single sum or in installments) installments in the absence of this paragraph such delay) shall be paid or reimbursed to the Executive or the Executive’s beneficiary in one a lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (sum and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) remaining payments and Section 1.409A-1(b)(9) (as “separation pay benefits due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, paid or comply with, provided in accordance with the requirements of Section 409A of the Codenormal payment dates specified for them herein. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

409A. (a) To It is intended that this Agreement will comply with Section 409A and Section 457A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and guidelines promulgated thereunder (collectively, “Section 409A”), to the extent required by the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A or Section 457a, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure to act pursuant to this Section 12.14 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A or Section 457A of the Code. (b) Notwithstanding any provision to the contrary in this Agreement, all references to “termination if the Executive is deemed on the date of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a his or her “separation from service” (as defined in within the meaning of Treas. Reg. Section 1.409A-1(h)) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment or benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service” that is required to be delayed pursuant to Section 409A(a)(2)(B) of the CodeCode (after taking into account any applicable exceptions to such requirement), then such payments payment or benefits benefit shall not be made or commence until provided on the earliest date that is the earlier of (xi) the expiration of the six (6) month and one day 6)-month period measured from the date of the Executive’s “separation from service (as defined in Section 18(a) above) from the Company; service,” or (yii) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to (the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral“Delay Period”). Upon the expiration of the applicable deferral periodDelay Period, any all payments which and benefits delayed pursuant to this Section 12.14 (whether they would have otherwise been made during that period (whether payable in a single sum or in installments) installments in the absence of this paragraph such delay) shall be paid or reimbursed to the Executive in a lump sum and any remaining payments and benefits due under this Agreement shall be paid or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) provided in accordance with the policies of the Employernormal payment dates specified for them herein. (c) It is intended that each installment of With respect to any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A arrangements of the CodeCompany and its subsidiaries that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the following conditions shall be applicable: (i) the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefitbenefits provided, under any such arrangement in one calendar year shall may not affect the expenses amount eligible for reimbursement reimbursement, or in-kind benefits to be provided, under such arrangement in any other taxable calendar year (except for any lifetime that the health and dental plans may impose a limit on the amount that may be reimbursed or other aggregate limitation applicable to medical expensespaid), in no event shall (ii) any expenses reimbursement must be reimbursed after made on or before the last day of the calendar year following the calendar year in which the Executive incurred such expensesexpense was incurred, and in no event shall any (iii) the right to reimbursement or the provision of any in-kind benefit be benefits is not subject to liquidation or exchange for another benefit.. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days after termination of employment”), the actual date of payment within the specified period shall be within the sole discretion of the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A.

409A. Notwithstanding anything to the contrary in this Agreement, if at the time Employee’s employment terminates, and Employee is a “specified employee,” as defined below, any and all amounts payable under this Agreement on account of such separation from service that 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 to the extent required of amounts that 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 (c) other amounts or benefits that are not subject to the requirements of Section 409A (“Section 409A”) of the Internal Revenue Code of 1986 as amended (the “Code”). For purposes of this Agreement, all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer Company to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall the 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, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year 409A. The immediately preceding sentence shall not affect apply if such failure is caused by the expenses eligible for reimbursement in Company’s or any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision its affiliates’ breach of any in-kind benefit be subject to liquidation or exchange for another benefitthis Agreement.

409A. (a) To It is intended that the extent required by payments and benefits under this Agreement comply with Section 409A of the CodeCode (together with the Treasury Regulations relating thereto, all references “Section 409A”), or satisfy the requirements for an exemption to “termination Section 409A, in each case, to the extent applicable to this Agreement and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith (or to be in satisfaction of employment,” “Date of Termination” and correlative phrases 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, the Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement Agreement, no Termination Date shall be construed deemed to require have occurred, and no payment otherwise payable upon a termination of the Executive’s employment shall be paid to the Executive under this Agreement unless and until the Executive’s termination of employment constitutes a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, in connection with the Executive’s termination of employment with from the Company constitute deferred compensation subject to within the meaning of Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employeeSeparation from Service”). Any payments described in this Agreement that qualify for the “short-term deferral” under exception from Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined described in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i)1.409A-1(b)(4) will be paid under such exception. It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii) and any state law the application of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “the short-term deferral”deferral exception), each payment under this Agreement will be 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 otherwise), to the extent delayed commencement of any portion of the payments to be made to the Executive upon his Separation from Service is required to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of 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 1.409A-1(b)(9) (as “separation pay due 409A, any payments or amounts reimbursable to involuntary separation”). The parties intend that all the benefits and payments provided Executive under this Agreement shall be exempt from, paid or comply with, reimbursed to the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement Executive on or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after before the last day of the calendar year following the calendar year in which the Executive expense was incurred such expenses, and in no event shall any right to the amount of expenses eligible for reimbursement or the provision of any (and in-kind benefit 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 (or in-kind benefits) may not be subject liquidated or exchanged for any other benefit. With respect to liquidation or exchange for another benefitany 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. (a) To In the extent required by Section 409A of the Code, all references to “termination of employment,” “Date of Termination” and correlative phrases for purposes of this Agreement shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein). (b) To the extent event that (i) any payments or benefits to which the Executive becomes entitled under this Agreement, or under any other plan, program or agreement maintained by the Employer, set forth in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (ii) the Executive is deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (x) the expiration of the six (6) month and one day period measured from the date of the Executive’s separation from service (as defined in Section 18(a) above) from the Company; or (y) the date of the Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to the Executive, including (without limitation) the additional twenty percent (20%) tax for which the Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to the Executive or the Executive’s beneficiary in one lump sum. For the purposes of this Section 18, the term “specified employee” means an individual determined by the Employer to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of the Employer. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a “short-term deferral”) and Section 1.409A-1(b)(9) (as “separation pay due to involuntary separation”). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. (d) To the extent any expense reimbursement or the provision of any inconstitute “non-kind benefit under this Agreement is determined to be qualified deferred compensation” subject to Section 409A of the Code, then the following conditions apply to such payments or benefits: (i) The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively, “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonable possible, maintain the original intent and economic benefit to the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Code Section 409A or damages for failing to comply with Code Section 409A. (ii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amount or benefit upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.” Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Executive, and (B) the date of the Executive’s death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 7(a)(ii) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and all remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. (iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (A) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidations or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or the provision of any in-kind benefit, benefits provided in one calendar any taxable year shall not in any way affect the expenses eligible for reimbursement reimbursement, or in-kind benefits to be provided, in any other taxable year year. (except for iv) For purposes of Code Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company. (v) Notwithstanding any lifetime or other aggregate limitation applicable provision of this Agreement to medical expenses)the contrary, in no event shall any expenses be reimbursed after the last day payment or benefit under this Agreement that constitutes “nonqualified deferred compensation” for purposes of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit Code Section 409A be subject to liquidation or exchange for another benefit.offset by any other amounts unless otherwise permitted by Code Section 409A.