Common use of Compliance with Code Section 409A Clause in Contracts

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance witha) the requirements of Code Section 409A. Any terms Notwithstanding any provision of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, Executive’s employment will be deemed to have terminated on the date of termination, Executive “separation from service” (within the Executive meaning of Treas. Reg. Section 1.409A-1(h)) with Company. (b) It is a “specified employee” as defined in intended that this Agreement will comply with Section 409A of the Code, and any regulations and guideline issued thereunder (“Section 409A”) to the deferral extent that any compensation and benefits provided hereunder constitute deferred compensation subject to Section 409A. This Agreement shall be interpreted on a basis consistent with this intent. The Parties will negotiate in good faith to amend this Agreement as necessary to comply with Section 409A in a manner that preserves the original intent of the commencement Parties to the extent reasonably possible. No action or failure to act, pursuant to this Section 14 shall subject Company to any claim, liability, or expense, and Company shall not have any obligation to indemnify or otherwise protect Executive from the obligation to pay any taxes pursuant to Section 409A of the Code. (c) For purposes of the application of Treas. Reg. § 1.409A-1(b)(4)(or any successor provision), each payment in a series of payments will be deemed a separate payment. (d) Notwithstanding anything in this Agreement to the contrary, if any amount or benefits benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable hereunder or distributable under this Agreement by reason of Executive’s separation from service during a period in which Executive is a “specified Executive” (as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax defined under Code Section 409A409A and the final regulations thereunder), then the then, subject to any permissible acceleration of payment by Company will defer the commencement under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes): (i) if the payment of any such payments or benefits hereunder (without any reduction distribution is payable in such payments or benefits ultimately paid or provided to a lump sum, the Executive) ’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the date that is earlier of Executive’s death or the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and Executive’s separation from service; and (ii) if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six months immediately following Executive’s separation from service will be accumulated, and the Executive’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service, whereupon the accumulated amount will be paid or distributed to Executive and the normal payment or distribution schedule for any other remaining payments of money or other benefits due distributions will resume. This Section 14(d) should not be construed to the Executive hereunder could cause prevent the application of an accelerated Treas. Reg § 1.409A-1(b)(9)(iii)(or any successor provision) to amounts payable hereunder (or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsportion thereof).

Compliance with Code Section 409A. (i) The intent of the parties is that payments and benefits under this Agreement comply with or are be exempt from Code Section 409A of and, accordingly, to the Code and maximum extent permitted, this Agreement shall be interpreted and construed to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms therewith. If any provision of this Agreement that are undefined (or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments award of compensation, including equity compensation or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order benefits) would cause Executive to prevent incur any accelerated or additional tax or interest under Code Section 409A, then the Company will defer shall, after consulting with and receiving the commencement approval of Executive, reform such provision in a manner intended to avoid the payment incurrence by Executive of any such payments additional tax or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and interest. (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a 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 that are considered nonqualified deferred compensation under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A of the Code 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.” The determination of whether and when a separation from service has occurred for proposes of this Agreement shall be made in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulations. (iii) Any provision of this Agreement to the contrary notwithstanding, if at the time of Executive’s separation from service, the Company determines that Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent any payment or benefit that Executive becomes entitled to under this Agreement on account of such separation from service would be considered nonqualified deferred compensation under Code Section 409A, such payment or benefit shall be paid or provided at the date which is the earlier of (i) six (6) months and one day after such separation from service and (ii) the date of Executive’s death (the “Delay Period”). Each payment made Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 9(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or provided to Executive in a lump-sum, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment dates specified for them herein. (iv) Any reimbursements and the right to a series of installment payments in-kind benefits provided under this Agreement that constitute deferred compensation within the meaning of Code Section 409A shall be made or provided in accordance with the requirements of Code Section 409A, including that (A) in no event shall any fees, expenses or other amounts eligible to be reimbursed by the Company under this Agreement be paid later than the last day of the calendar year next following the calendar year in which the applicable fees, expenses or other amounts were incurred; (B) the amount of expenses eligible for reimbursement, or in-kind benefits that the Company is obligated to pay or provide, in any given calendar year shall not affect the expenses that the Company is obligated to reimburse, or the in-kind benefits that the Company is obligated to pay or provide, in any other calendar year, provided that the foregoing clause (B) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect; and (C) Executive’s right to have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit. (v) For purposes of Code Section 409A, Executive’s right to receive any installment payments 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 (for example, “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent such payment is subject to Code Section 409A.

Compliance with Code Section 409A. The intent of the parties is that All payments and benefits under this Agreement are intended to comply with or are be exempt from the requirements of Section 409A of the Code and regulations promulgated thereunder (“Section 409A”). To the extent permitted under applicable regulations and/or other guidance of general applicability issued pursuant to Section 409A, the Company reserves the right to modify this Agreement to conform with any or all relevant provisions regarding compensation and/or benefits so that such compensation and benefits are exempt from the provisions of 409A and/or otherwise comply with such provisions so as to avoid the tax consequences set forth in Section 409A and to assure that no payment or benefit shall be interpreted and construed in a manner that establishes subject to an exemption from (or compliance with) the requirements of Code “additional tax” under Section 409A. Any terms of To the extent that any provision in this Agreement that are undefined is ambiguous as to its compliance with Section 409A, or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent any provision in this Agreement must be modified to comply with Section 409A, such provision shall be read in such a manner so that no payment due to the Executive shall be subject to an “additional tax” within the meaning of Section 409A(a)(1)(B) of the Code. If necessary to comply with the restriction in Section 409A(a)(2)(B) of the Code Section 409A. Notwithstanding anything herein concerning payments to the contrary, (i) if, on the date of termination, the Executive is a “specified employeeemployees,” as defined in Section 409A any payment on account of the Code, and the deferral of the commencement of any payments or benefits Executive’s separation from service that would otherwise payable be due hereunder as a result of within six (6) months after such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) separation shall be delayed until the date that is the first business day of the seventh month following the date of the Executive’s termination and the first such payment shall include the cumulative amount of any payments (without interest) that would have been paid prior to such date if not for such restriction. Each payment in a series of payments hereunder shall be deemed to be a separate payment for purposes of Section 409A. In no event may the Executive, directly or indirectly, designate the calendar year of payment. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the earliest date as amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is permitted under Code Section 409A)incurred, and (iiiv) if any other payments of money the right to reimbursement is not subject to liquidation or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonexchange for another benefit. Notwithstanding anything contained herein to the contrary hereincontrary, to the extent required by Code Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with the Company for purposes of any provision of this Agreement providing for unless the payment of amounts or benefits upon or following Executive would be considered to have incurred a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” from the Company within the meaning of Treasury Regulation §1.409A-1(h)(1)(ii). In no event whatsoever shall the Company be liable for any additional tax, interest or like terms shall mean separation from service. Each payment made under this Agreement shall penalty that may be treated as a separate payment and imposed on the right Executive by Section 409A or damages for failing to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.comply with Section 409A.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, Executive’s termination of employment with the Company Executive is a “specified employee” as defined in Section 409A of the Code, Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In 409A of the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax Code, or additional tax under Code Section 409A, then otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent required possible, in a manner, determined by Code Section 409Athe Board, a termination of employment shall that does not be deemed to have occurred for cause such an accelerated or additional tax. For purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code andCode, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each each payment made under this Agreement shall be treated designated as a “separate payment payment” within the meaning of the Section 409A of the Code, and references herein to Executive’s “termination of employment” shall refer to Executive’s separation from service with the right Company within the meaning of Section 409A. To the extent any reimbursements or in-kind benefits due to a series of installment payments Executive under this Agreement is constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to be treated as Executive in a right manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 11(h); provided that neither the Company nor any of its employees or representatives shall have any liability to a series of separate payments.Executive with respect to thereto or any tax imposed under Section 409A.

Compliance with Code Section 409A. The intent With respect to reimbursements or in-kind benefits provided under this Agreement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement, (b) any reimbursement or provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement) shall be made not later than December 31st of the parties year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that payments and benefits any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with or are exempt from the provisions of Section 409A of the Code and the Treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be imposed under Section 409A of the Code. In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Section 409A of the Code, the parties agree to amend this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of order to bring this Agreement that are undefined or ambiguous shall be interpreted into compliance with Section 409A of the Code; and thereafter interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the deferral of the commencement of Executive shall be responsible for any payments taxes, penalties and interest imposed on him under or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this in connection with the Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. 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.

Compliance with Code Section 409A. The intent of To the parties is extent that payments and benefits any payment under this Agreement comply with or are exempt from constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Internal Revenue Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from of 1986, as amended (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary“Code”), (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “terminationtermination ,” “termination of employment” or like terms shall mean “separation from service. Each payment made under ,” (ii) the Executive’s right to receive any installment payments pursuant to 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 receive a series of separate and distinct payments, and (iii) 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 deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made or provided at 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 Executive, and (B) the date of 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(j) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement intended to comply with or are exempt from the requirements of Section 409A of the Code and and, as a result, this Agreement shall be construed, interpreted and construed operated in a manner that establishes an exemption from (or compliance with) will ensure such compliance. Without limiting the requirements scope of Code Section 409A. Any terms the preceding provisions of this Agreement that are undefined or ambiguous Section 22, the following provisions shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, apply: (i) if, on All references in this Agreement to the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of Executive’s employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the with Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), shall mean and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred deemed to occur if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, and when a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also that constitutes a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder has occurred. (ii) To the extent that Executive is a specified employee, as defined in Treas. Reg. §1.409A-1(i), and any stock of the Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code and, for purposes of any such provision (including payments and benefits subject to other provisions of this Agreement, references to a “termination,” “termination of employment” or like terms Section 22) shall mean separation from service. Each payment be made under this Agreement on account of the Executive’s separation from service with the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code, before the date that is the first day of the month that occurs six months after the date of Executive’s separation from service (or, if earlier, the date of death of Executive or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder if and to the extent such payment or benefit constitutes, pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), separation pay payable or to be provided only upon an involuntary separation from service, does not exceed two times the lesser of the Executive’s annual Salary at the rate then in effect or the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code in the year in which the Executive has a separation from service, and is paid no later than the last day of the second year following the year in which the involuntary separation from service occurs. In addition, any noncash benefit to be provided under this Agreement that is described in, and subject to the delay of, the first sentence of this Section 22(ii), such benefit shall be made available to the Executive during that six month period, but only upon the full and timely payment in cash by Executive to the Company of the fair and arms’ length value of such benefit, which payments shall be reimbursed by the Company to the Executive after the delay described above and otherwise in accordance with Section 22(iii). (iii) To the extent that any amount or benefit hereunder is includable in gross income for federal income tax purposes and constitutes or is treated hereunder as a reimbursement or in-kind benefit received or to be received by Executive, such reimbursement or in-kind benefit shall be administered consistent with the following additional requirements as set forth in Treas. Reg. §1.409A-3(i)(1)(iv): (1) Executive’s eligibility for or receipt of benefits or reimbursements in one year will not affect Executive’s eligibility for or the amount of benefits or reimbursements in any other year, (2) any reimbursement of eligible expenses will be made on or before the last day of the year following the year in which the expense was incurred, (3) Executive’s right to benefits or reimbursement is not subject to liquidation or exchange for another benefit, and (4) the right to reimbursement of expenses incurred or to the provision of benefits in kind shall terminate ten (10) years from the Executive’s termination of employment. (iv) To the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder, such offset may occur only if it would not result in an impermissible acceleration under Section 409A of the Code. (v) To the extent that any benefit in kind or coverages to be provided under this Agreement either cannot be provided without contravening the requirements of applicable law because the Executive has ceased to be employed by the Company, or would subject the Executive to additional income taxes under Section 409A of Code, the Company shall not provide such benefit in kind or coverage, but shall in lieu thereof pay an amount equal to the Company’s cost (determined as of the date on which Executive’s coverage terminated) of providing such benefit for the period such benefit or coverage was otherwise required under this Agreement, and such amount shall be payable in equal, periodic installments at the same regular intervals at which Executive’s Salary would be payable under the normal Company’s payroll practices and procedures commencing with the first payroll date on or immediately after the Executive’s benefit in kind or coverage terminates. (vi) Each right to benefits in kind over a period of time that would be treated as a separate payment and the right to a series of installment payments, and/or each right to payments under this Agreement is to in respect of such benefits and Section 22(v), shall at all times be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of To the parties is that payments fullest extent applicable, amounts and benefits payable under this Agreement comply with or are intended to be exempt from the definition of “nonqualified deferred compensation” under Code Section 409A in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Code and this Agreement shall be interpreted and construed in Section 409A and, to the extent that any such amount or benefit is or becomes subject to Code Section 409A due to a manner that establishes failure to qualify for an exemption from (or compliance with) the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to comply with the applicable requirements of Code Section 409A. Any terms of this Agreement that are undefined 409A with respect to such amounts or ambiguous shall benefits and will be interpreted and administered to the extent possible in a manner that complies consistent with Code Section 409A to the extent necessary to comply with Code Section 409A. foregoing statement of intent. Notwithstanding anything herein to the contrary, (i) if, if on the date the Employee “separates from service” within the meaning of terminationTreasury Regulation section 1.409A-1(h), (A) the Executive Company is publicly traded, (B) the Employee is a “specified employee” Specified Employee (as defined in below), and (C) the Company reasonably determines that (x) a payment or benefit payable hereunder as a result of the Employee’s separation from service constitutes nonqualified deferred compensation that is subject to the requirements of Code Section 409A of the Code, and (y) the deferral of the commencement of any such payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any withhold and accumulate such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the ExecutiveEmployee) until the date that is the first business six months and one day of the seventh month following the Employee’s separation from service date of termination (or the earliest date as is permitted under Code Section 409A), at which time the withheld and accumulated payments shall be paid to the Employee in a single lump sum payment and (ii) if any other payments of money or other benefits due to the Executive Employee hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent required possible, in a manner, determined by Code Section 409Athe Company, a termination of employment that does not cause such an accelerated or additional tax. “Specified Employee” shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also mean a “separation from servicespecified employee” within the meaning of Code Section 409A 409A(a)(2)(B)(i), as determined by the Compensation Committee of the Code and, for purposes Board of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. 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 paymentsDirectors.

Compliance with Code Section 409A. (i) The intent of the parties is that payments and benefits under this Agreement comply with or are be exempt from Code Section 409A of and, accordingly, to the Code and maximum extent permitted, this Agreement shall be interpreted and construed to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms therewith. If any provision of this Agreement that are undefined (or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments award of compensation, including equity compensation or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order benefits) would cause Executive to prevent incur any accelerated or additional tax or interest under Code Section 409A, then the Company will defer shall, after consulting with and receiving the commencement approval of Executive, reform such provision in a manner intended to avoid the payment incurrence by Executive of any such payments additional tax or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and interest. (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a 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 that are considered nonqualified deferred compensation under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A of the Code 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.” The determination of whether and when a separation from service has occurred for proposes of this Agreement shall be made in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulations. (iii) Any provision of this Agreement to the contrary notwithstanding, if at the time of Executive’s separation from service, the Company determines that Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent any payment or benefit that Executive becomes entitled to under this Agreement on account of such separation from service would be considered nonqualified deferred compensation under Code Section 409A, such payment or benefit shall be paid or provided at the date which is the earlier of (i) six (6) months and one day after such separation from service and (ii) the date of Executive’s death (the “Delay Period”). Each payment made Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 9(j) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or provided to Executive in a lump-sum, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment dates specified for them herein. (iv) Any reimbursements and the right to a series of installment payments in-kind benefits provided under this Agreement that constitute deferred compensation within the meaning of Code Section 409A shall be made or provided in accordance with the requirements of Code Section 409A, including that (A) in no event shall any fees, expenses or other amounts eligible to be reimbursed by the Company under this Agreement be paid later than the last day of the calendar year next following the calendar year in which the applicable fees, expenses or other amounts were incurred; (B) the amount of expenses eligible for reimbursement, or in-kind benefits that the Company is obligated to pay or provide, in any given calendar year shall not affect the expenses that the Company is obligated to reimburse, or the in-kind benefits that the Company is obligated to pay or provide, in any other calendar year, provided that the foregoing clause (B) 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; (C) Executive’s right to have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit; and (D) in no event shall the Company’s obligations to make such reimbursements or to provide such in-kind benefits apply later than Executive’s remaining lifetime (or if longer, through the sixth (6th) anniversary of the Effective Date). (v) For purposes of Code Section 409A, Executive’s right to receive any installment payments 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 (for example, “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent such payment is subject to Code Section 409A.

Compliance with Code Section 409A. The intent This Agreement is intended to comply with the requirements of Section 409A of the parties is Code and, to the extent that payments and benefits under adverse tax consequences thereunder may be avoided, this Agreement comply with or (i) shall automatically be amended to the extent necessary to incorporate any provisions required to ensure such compliance (which the Parties hereby agree are exempt from hereby adopted, approved, consented to, ratified and incorporated herein by reference) and (ii) shall be construed, interpreted and operated in a manner that will ensure such compliance. Without limiting the scope of the preceding provisions of this Section 20, to the extent that at any time prescribed under Section 409A of the Code and this Agreement shall be interpreted and construed regulations or other regulatory guidance issued thereunder, Executive is a key employee, as defined in a manner that establishes an exemption from (or compliance withSection 416(i) of the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A without regard to paragraph 5 thereof, except to the extent necessary permitted under Section 409A of the Code and regulations or other regulatory guidance issued thereunder, no distribution or payment that is subject to comply with Section 409A of the Code Section 409A. Notwithstanding anything herein to the contraryshall be made under this Agreement on account of Executive’s separation from service, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the CodeCode and the regulations or other regulatory guidance issued thereunder, with the Company (at any time when Executive is deemed under Section 409A of the Code and regulations or other regulatory guidance issued thereunder to be a specified employee, as defined in Section 409A of the Code and regulations or other regulatory guidance issued thereunder, and the deferral any stock of the commencement of any payments Company is publicly traded on an established securities market or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executiveotherwise) until the date that is the first business day of the seventh month following that occurs six (6) months after the date of termination Executive’s separation from service (or, if earlier, the date of death of Executive or the earliest any other date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code andand regulations or other regulatory guidance issued thereunder). In furtherance of the immediately preceding sentence, for purposes of any such provision distribution or payment otherwise payable in cash to Executive pursuant to the terms of this AgreementAgreement within the period described in the immediately preceding sentence following Executive’s separation from service with the Company will accrue and will be payable in a lump sum payment, references to a “termination,” “termination with interest at the prime rate per annum for commercial lending (as published in the Wall Street Journal on the date of employment” or like terms shall mean Executive’s separation from service. Each ) from the date the payment would have been made under but for application of this Agreement shall be treated as a separate Section to the date of payment, on the payment and date set forth in the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsimmediately preceding sentence.

Compliance with Code Section 409A. The intent To the extent applicable, it is intended that the payment of the parties is that payments and benefits under described in this Agreement comply with Code section 409A and all guidance or are exempt regulations thereunder (“Section 409A ”), or qualify for an exemption from Section 409A of (e.g., the Code short-term deferral exception and this the “two times” pay exemption applicable to severance payments). This Agreement shall will, to the extent subject to Section 409A, at all times be interpreted and construed in a manner that establishes an exemption from (or to comply with Section 409A and should any provision be found not in compliance with) with Section 409A, Executive hereby agrees to any changes to the requirements of Code Section 409A. Any terms of this Agreement deemed necessary and required by legal counsel for Company to achieve compliance with Section 409A, including any applicable exemptions. By signing a copy of this Agreement, Executive irrevocably waives any objections he may have to any changes that are undefined or ambiguous shall may be interpreted required by Section 409A. In no event will any payment that becomes payable pursuant to this Agreement that is considered “deferred compensation” within the meaning of Section 409A, if any, and does not satisfy any of the applicable exemptions under Section 409A, be accelerated in a manner that complies with Code violation of Section 409A to 409A. To the extent necessary that any amount payable hereunder upon Executive’s termination of employment is subject to comply with Code Section 409A. Notwithstanding anything herein to the contrary409A, (i) ifpayment shall not be made until Executive incurs a “separation from service,” as defined in Section 409A, on the date of termination, the from Company. If Executive is a “specified employee” as defined in Section 409A of the Code409A, and the deferral of the commencement of any payments or benefits otherwise payment that becomes payable hereunder as a result of such upon his termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination that is also a considered “separation from servicedeferred compensation” within the meaning of Section 409A and does not satisfy any of the Code andapplicable exemptions under Section 409A may not be made before the date that is six months after Executive’s separation from service (or death, for purposes of any such provision of this Agreementif earlier). To the extent Executive becomes subject to the six-month delay rule, references all payments that would have been made to a “termination,” “termination of employment” or like terms shall mean Executive during the six months following his separation from service that are not otherwise exempt from Section 409A, if any, will be accumulated and paid to Executive during the seventh month following his separation from service, and any remaining payments due will be made in their ordinary course as described in this Agreement. Each payment made under Company will notify Executive should he become subject to the six-month delay rule. For purposes of Section 409A, any right to receive any installment payments pursuant to 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 receive a series of separate and distinct payments.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, if on the date of termination, the Termination Date Executive is a “specified employee” as defined in Section 409A of the Code, Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company or Executive’s earlier death (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In 409A of the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax Code, or additional tax under Code Section 409A, then otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent required possible, in a manner, determined by Code Section 409Athe Board, a termination of employment shall that does not be deemed to have occurred for cause such an accelerated or additional tax. For purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code andCode, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each each payment made under this Agreement shall be treated designated as a “separate payment payment” within the meaning of the Section 409A of the Code, and references herein to Executive’s “termination of employment” shall refer to Executive’s separation from service with the right Company within the meaning of Section 409A. To the extent any reimbursements or in-kind benefits due to a series of installment payments Executive under this Agreement is constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to be treated as Executive in a right manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 8(h); provided that neither the Company nor any of its employees or representatives shall have any liability to a series of separate payments.Executive with respect to thereto or any tax imposed under Section 409A.

Compliance with Code Section 409A. The intent To the extent applicable, it is intended that the payment of the parties is that payments and benefits under described in this Agreement comply with Code Section 409A and all guidance or are exempt regulations thereunder ("Section 409A"), including compliance with all applicable exemptions from Section 409A of (e.g., the Code short-term deferral exception and this the "two times" pay exemption applicable to severance payments). This Agreement shall will at all times be interpreted and construed in a manner that establishes an exemption from (or to comply with Section 409A and should any provision be found not in compliance with) with Section 409A, Executive hereby agrees to any changes to the requirements of Code Section 409A. Any terms of this Agreement deemed necessary and required by legal counsel for Company to achieve compliance with Section 409A, including any applicable exemptions. By signing a copy of this Agreement, Executive irrevocably waives any objections he may have to any changes that are undefined or ambiguous shall may be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code required by Section 409A. Notwithstanding anything herein In no event will any payment that becomes payable pursuant to this Agreement that is considered "deferred compensation" within the contrarymeaning of Section 409A, (i) ifif any, on and does not satisfy any of the date applicable exemptions under Section 409A, be accelerated in violation of termination, the Section 409A. If Executive is a “"specified employee” " as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the any payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred becomes payable pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination that is also a “separation from service” considered "deferred compensation" within the meaning of Section 409A and does not satisfy any of the Code andapplicable exemptions under Section 409A may not be made before the date that is six months after Executive’s separation from service (or death, for purposes of any such provision of this Agreementif earlier). To the extent Executive becomes subject to the six-month delay rule, references all payments that would have been made to a “termination,” “termination of employment” or like terms shall mean Executive during the six months following his separation from service that are not otherwise exempt from Section 409A, if any, will be accumulated and paid to Executive during the seventh month following his separation from service, and any remaining payments due will be made in their ordinary course as described in this Agreement. Each payment made under this Agreement shall be treated as a separate payment and Company will notify Executive should he become subject to the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentssix month delay rule.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with (a) If any payment, compensation or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or other benefit provided to the Executive) until the date that Executive in connection with his employment termination is the first business day of the seventh month following the date of termination (determined, in whole or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinpart, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a constitute “separation from servicenonqualified deferred compensation” within the meaning of Section 409A and the Executive is a specified employee as defined in Section 409A(2)(B)(i), no part of such payments shall be paid before the day that is six (6) months plus one (1) day after the date of termination (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to the Executive during the period between the date of termination and the New Payment Date shall be paid to the Executive in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the Code andday immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, for purposes in accordance with the terms of this Agreement. Notwithstanding the foregoing, to the extent that the foregoing applies to the provision of any ongoing welfare benefits to the Executive that would not be required to be delayed if the premiums therefor were paid by the Executive, the Executive shall pay the full cost of premiums for such provision welfare benefits during the six-month period and the Company shall pay the Executive an amount equal to the amount of such premiums paid by the Executive during such six-month period promptly after its conclusion. (b) 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 to the Executive 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 Executive 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; provided, however, that any resulting renegotiated terms shall provide to the Executive the after-tax economic equivalent of what otherwise has been provided to the Executive pursuant to the terms of this Agreement, references to a “termination,” “termination and provided further, that any deferral of employment” payments or like terms shall mean separation from service. Each payment made under this Agreement other benefits shall be treated only for such time period as a separate payment and the right may be required to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.comply with Section 409A.

Compliance with Code Section 409A. The intent To the extent applicable, it is intended that the payment of the parties is that payments and benefits under described in this Agreement comply with Code Section 409A and all guidance or are exempt regulations thereunder (“Section 409A”), including compliance with all applicable exemptions from Section 409A of (e.g., the Code short-term deferral exception and this the “two times” pay exemption applicable to severance payments). This Agreement shall will at all times be interpreted and construed in a manner that establishes an exemption from (or to comply with Section 409A and should any provision be found not in compliance with) with Section 409A, Executive hereby agrees to any changes to the requirements of Code Section 409A. Any terms of this Agreement deemed necessary and required by legal counsel for Company to achieve compliance with Section 409A, including any applicable exemptions. By signing a copy of this Agreement, Executive irrevocably waives any objections he may have to any changes that are undefined or ambiguous shall may be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code required by Section 409A. Notwithstanding anything herein In no event will any payment that becomes payable pursuant to this Agreement that is considered “deferred compensation” within the contrarymeaning of Section 409A, (i) ifif any, on and does not satisfy any of the date applicable exemptions under Section 409A, be accelerated in violation of termination, the Section 409A. If Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the any payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred becomes payable pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination that is also a considered “separation from servicedeferred compensation” within the meaning of Section 409A and does not satisfy any of the Code andapplicable exemptions under Section 409A may not be made before the date that is six months after Executive’s separation from service (or death, for purposes of any such provision of this Agreementif earlier). To the extent Executive becomes subject to the six-month delay rule, references all payments that would have been made to a “termination,” “termination of employment” or like terms shall mean Executive during the six months following his separation from service that are not otherwise exempt from Section 409A, if any, will be accumulated and paid to Executive during the seventh month following his separation from service, and any remaining payments due will be made in their ordinary course as described in this Agreement. Each payment made under this Agreement shall be treated as a separate payment and Company will notify Executive should he become subject to the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentssix month delay rule.

Compliance with Code Section 409A. The intent of the parties is that payments and If any amounts or benefits payable under this Agreement comply with or are exempt from on account of Employee’s termination of employment constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), no payments or benefits shall be paid or provided until Employee incurs a separation from service within the meaning of Treas. Reg. § 1.409A-1(h) from the Company and any entity that would be considered a single employer with the Company under Code Sections 414(b) or 414(c) (“Separation from Service”). If, at the time of Employee’s Separation from Service, the Employee is a “specified employee” (within the meaning of Code Section 409A and Treas. Reg. §1.409A-3(i)(2)), the Company will not pay or provide any “Specified Benefits” (as defined herein) during the six-month period (the “409A Suspension Period”) beginning immediately after the Employee’s Separation from Service. For purposes of this Agreement, “Specified Benefits” are any amounts or benefits that would be subject to Code Section 409A penalties if the Company were to pay them, pursuant to this Agreement, on account of the Employee’s Separation from Service. This Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Company shall have complete discretion to interpret and construe this Agreement shall be interpreted and construed any associated documents in a any manner that establishes an exemption from (or compliance withotherwise conforms them to) the requirements of Code Section 409A. Any terms If, for any reason including imprecision in drafting, the Agreement does not accurately reflect its intended establishment of this Agreement that are undefined an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Company in a manner that complies with Code Section 409A fashion consistent herewith, as determined in the sole and absolute discretion of the Company. The Company reserves the right to unilaterally amend this Agreement without the extent necessary consent of the Employee in order to comply accurately reflect its correct interpretation and operation, as well as to maintain an exemption from or compliance with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the CodeNevertheless, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if notwithstanding any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references neither the Company nor any of its employees, directors, or their agents shall have any obligation to a “termination,” “termination of employment” mitigate, nor to hold the Employee harmless from, any or like terms shall mean separation from service. Each payment made all taxes (including any imposed under Code Section 409A) arising 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 paymentsAgreement.

Compliance with Code Section 409A. The intent of the parties is that payments and With respect to reimbursements or in-kind benefits provided under this Agreement or under any other Company Arrangement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement or under any other Company Arrangement, (b) any reimbursement of provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement or of any other Company Arrangement) shall be made not later than December 31st of the year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement or of any other Company Arrangement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that any amounts payable under this Agreement, any Employee Plan or any other Company Arrangement, and any exercise of the Company’s and the Executive’s authority or discretion hereunder, shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall the treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of imposed under Code Section 409A. Any terms In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Code Section 409A, the Parties agree to amend this Agreement that are undefined or ambiguous shall be interpreted in order to bring this Agreement into compliance with Code Section 409A; and thereafter to interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the deferral U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding anything in this Agreement or elsewhere to the contrary, and unless the Executive otherwise agrees in a signed writing executed in connection with the termination of his employment under this Agreement, the Executive shall have no duties or responsibilities after the Termination Date that are inconsistent with his having had a Separation from Service on the Termination Date. If the Executive agrees, in a signed writing that is executed in connection with the termination of his employment under this Agreement, to undertake duties and responsibilities that will result in his not incurring a Separation from Service on the Termination Date, all references to the Termination Date herein for the purposes of determining the commencement of any severance payments or and benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be constitute deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” compensation within the meaning of Section 409A shall mean the date Executive incurs a Separation from Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with this Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on him under or as a result of Section 409A of the Code and, for purposes of any such provision in connection with payments and benefits made in accordance with the terms of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. 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.

Compliance with Code Section 409A. The intent This Agreement is intended to comply with the requirements of Internal Revenue Code Section 409A, or any applicable exemptions from Code Section 409A, as the parties is case may be. Despite any contrary provision of this Agreement: (a) Any payments that qualify for the “short-term deferral” exception or another exception under Code Section 409A will be paid under such exception. (b) All payments and benefits to be made upon a termination of employment under this Agreement comply with or are exempt may only be made upon a “separation from service” under Section 409A of the Code Code. Executive may in no event, directly or indirectly, designate the calendar year of any payment under this Agreement. (c) Any reference to termination of employment or Executive’s date of termination shall mean and refer to the date of Executive’s “separation from service,” as that term is defined in Treas. Reg. Section 1.409A-1(h). (d) All reimbursements and in-kind benefits provided under this Agreement shall will be interpreted and construed made or provided in a manner that establishes an exemption from (or compliance with) accordance with the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary409A, (i) ifincluding, on the date of terminationwhere applicable, the requirement that (A) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement); (B) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year; (C) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred; and (D) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. For clarity, the parties agree that the restriction under (B) above does not apply to outplacement services provided under Section7(a)(E). (e) If Executive is a “specified employee” as defined in for purposes of Code Section 409A (as determined in accordance with the methodology established by the Company as in effect on the date of termination), (A) any payment that constitutes nonqualified deferred compensation within the Code, and meaning of Code Section 409A that is otherwise due to Executive under this Agreement during the deferral of the commencement of any payments or benefits otherwise payable hereunder six-month period following his separation from service (as a result of such termination of employment is necessary determined in order to prevent any accelerated or additional tax under accordance with Code Section 409A, then the Company ) will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately be accumulated and paid or provided to the Executive) until the date that is Executive on the first business day of the seventh month following separation from service (the “Delayed Payment Date”) and (B) in the event any equity compensation awards that vest upon termination of employment constitute nonqualified deferred compensation within the meaning of Code Section 409A, the delivery of shares of common stock (or cash) as applicable in settlement of such awards shall be made on the earliest permissible payment date (including the Delayed Payment Date) or event under Code Section 409A on which the shares (or cash) would otherwise be delivered or paid. Executive will be entitled to interest on any delayed cash payments from the date of termination (or to the earliest date as is permitted Delayed Payment Date at a rate equal to the applicable federal short-term rate in effect under Code Section 409A)1274(d) for the month in which separation from service occurs. If the case of death during the postponement period, the amounts and (ii) if any other payments entitlements delayed on account of money Code Section 409A will be paid to Executive’s personal representative on the first to occur of the Delayed Payment Date or other benefits due 30 days after death. For the avoidance of doubt, it is intended that this provision apply only to the Executive hereunder could cause the application of an accelerated or additional tax amounts payable under this Agreement that are subject to regulation under Code Section 409A, such payments or other benefits shall be deferred if deferral 409A and will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed interpreted or applied so as to have occurred for purposes of delay or otherwise defer any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also any amount that qualifies as a “separation from serviceshort-term deferral” (within the meaning of Treas. Reg. Section 409A 1.409A-1(b)(4)) or “separation pay” (within the meaning of Treas. Reg. Section 1.409A-1(b)(9)(3). (f) For purposes of the limitations on nonqualified deferred compensation under Code andSection, for purposes each payment of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made compensation under this Agreement shall will be treated as a separate payment of compensation for purposes of applying the Code Section 409A deferral election rules and the right exclusion under Code Section 409A for certain short-term deferral amounts. (g) Within the time period permitted by the applicable Code Section 409A or other applicable guidance, the Parties may by mutual written agreement modify the Agreement in order to a series cause the provisions of installment payments under this the Agreement is to be treated comply with the requirements of Code Section 409A, so as a right to a series avoid the imposition of separate paymentstaxes and penalties.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall intended to be written, administered, interpreted and construed in a manner such that establishes an exemption from no payment or benefits provided under the Agreement become subject to (or compliance witha) the requirements gross income inclusion set forth within Section 409A(a)(1)(A) of the Code or (b) the interest and additional tax set forth within Section 409A. Any 409A(a)(1)(B) of the Code (collectively, “Section 409A Penalties”), including, where appropriate, the construction of defined terms to have meanings that would not cause the imposition of Section 409A Penalties. The severance payments payable to the Executive pursuant to this Agreement that are undefined or ambiguous shall be interpreted made in a manner that complies with Code reliance upon Treasury Regulation Section 409A 1.409A-1(b)(4) (relating to short-term deferrals) and, to the extent necessary to comply with Code applicable, the exemption in Treasury Regulation Section 409A. Notwithstanding anything herein 1.409A-1(b)(9)(iii). However, to the contraryextent any such payments are treated as “non-qualified deferred compensation” subject to Section 409A of the Code, and if the Executive is deemed at the time of his 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 benefits to which the Executive is entitled under this Agreement is required in order to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of the Executive’s termination benefits shall not be provided to the Executive prior to the earlier of (i) if, on the expiration of the six-month period measured from the date of terminationthe Executive’s separation from service or (ii) the date of the Executive’s death. Upon the earlier of such dates, all payments deferred pursuant to this Section 22 shall be paid in a lump sum to the Executive. The determination of whether the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision Section 409A(a)(2)(B)(i) of this Agreement providing for the payment Code as of amounts or benefits upon or following a termination the time of employment unless such termination is also a “separation his Separation from service” within Service shall be made by the meaning Company in accordance with the terms of Section 409A of the Code andand applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto). For purposes of Section 409A of the Code (including, without limitation, for purposes of any such provision of this AgreementTreasury Regulation Section 1.409A-2(b)(2)(iii)), references each payment that the Executive may be eligible to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made receive under this Agreement shall be treated as a separate and distinct payment and the right to a series of installment payments under this Agreement is to shall not collectively be treated as a right single payment. In-kind benefits and reimbursements provided under this Agreement during any tax year of the Executive shall not affect in-kind benefits or reimbursements to a series be provided in any other tax year of separate paymentsthe Executive and are not subject to liquidation or exchange for another benefit. Reimbursement requests must be timely submitted by the Executive and, if timely submitted, reimbursement payments shall be made to the Executive as soon as administratively practicable following such submission in accordance with the Company’s policies regarding reimbursements, but in no event later than the last day of Executive’s taxable year following the taxable year in which the expense was incurred. In no event shall the Executive be entitled to any reimbursement payments after the last day of Executive’s taxable year following the taxable year in which the expense was incurred. This Section 22 shall only apply to in-kind benefits and reimbursements that would result in taxable compensation income to the Executive.

Compliance with Code Section 409A. (a) The intent of Company and the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of Executive intend the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined to be in compliance with Code Section 409A. The Company does not guarantee the tax treatment or tax consequences associated with any payment or benefit, including but not limited to consequences related to Code Section 409A. To the maximum extent permissible, any ambiguous terms of this Agreement shall be interpreted in a manner that complies avoids a violation of Code Section 409A. (b) If the Executive believes he or she is entitled to a payment or benefit pursuant to the terms of this Agreement that was not timely paid or provided, and such payment or benefit is considered deferred compensation subject to the requirements of Code Section 409A, the Executive acknowledges that to avoid an additional tax on such payment or benefit pursuant to the provisions of Code Section 409A, the Executive must make a reasonable, good faith effort to collect such payment or benefit no later than ninety (90) days after the latest date upon which the payment could have been timely made or benefit timely provided without violating Code Section 409A, and if not paid or provided, must take further enforcement measures within one hundred eighty (180) days after such latest date. (c) Neither the Company nor the Executive, individually or in combination, may accelerate any payment or benefit that is subject to Code Section 409A, except in compliance with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision provisions of this Agreement, references and no amount that is subject to a “termination,” “termination Code Section 409A shall be paid prior to the earliest date on which it may be paid without violating Code Section 409A. (d) For purposes of employment” or like terms shall mean separation from service. Each payment made applying the provisions of Section Code 409A to this Agreement, each separately identified amount to which the Executive is entitled under this Agreement shall be treated as a separate payment and payment. In addition, to the right to a extent permissible under Code Section 409A, any series of installment payments under this Agreement is to shall be treated as a right to a series of separate 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.

Compliance with Code Section 409A. The intent (A) This Agreement is intended to qualify for the short term deferral exclusion from the requirements of section 409A of the parties Code, as such exclusion is described in Treas. Reg. §1.409A-1(b)(4). Accordingly, notwithstanding any other provision of this Agreement, the Company may amend this Agreement at any time to the extent required to qualify for such exclusion under Code section 409A to ensure that payments and benefits all of the compensation provided under this Agreement comply with will not be subject to section 409A, as the Company may determine to be necessary or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from appropriate. (or compliance withB) the requirements of Code Section 409A. Any terms Each provision of this Agreement that are undefined or ambiguous involves the deferral of compensation that could be subject to Code section 409A shall be interpreted in a manner that complies with Code Section 409A the short term deferral exclusion from the requirements of such section, and each provision that conflicts with such exclusion shall be neither valid nor enforceable. This Agreement may not be amended in any way to accelerate the extent necessary payment of any amounts otherwise payable to comply with Code Section 409A. Notwithstanding anything herein to Employee as of the contrary, (i) if, on the effective date of terminationsuch amendment, except as may be permitted by such exclusion under Code section 409A. (C) Notwithstanding any provision of this Agreement, the Executive Company may terminate this Agreement at any time under any circumstances permitted by section 409A and, if the Company so desires, cause all of its obligation hereunder to be paid out in lump sum payments in cash as soon as practicable following such termination. (D) The Company and Employee further acknowledge that, even if Employee is determined to be a “specified employee” as such term is defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “on the termination of Employee’s employment” or like terms shall mean separation from service. Each payment made under this Agreement , that the payments to Employee in Section 1 shall be treated as a separate payment and the right to a series of installment payments under this Agreement is not be required to be treated as a right postponed to a series comply with section 409A because of separate paymentsthe application of the short term deferral exclusion from the requirements of that section. (E) Employee acknowledges that any tax, interest, and/or penalty resulting from non-compliance with section 409A of the Code is his responsibility and not that of the Company, the Bank, or any of their successors.

Compliance with Code Section 409A. (i) The intent of the parties is that payments and benefits under this Agreement comply with or are be exempt from Code Section 409A of and, accordingly, to the Code and maximum extent permitted, this Agreement shall be interpreted and construed to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms therewith. If any provision of this Agreement that are undefined (or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments award of compensation, including equity compensation or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order benefits) would cause Executive to prevent incur any accelerated or additional tax or interest under Code Section 409A, then the Company will defer shall, after consulting with and receiving the commencement approval of Executive, reform such provision in a manner intended to avoid the payment incurrence by Executive of any such payments additional tax or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and interest. (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a 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 that are considered nonqualified deferred compensation under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A of the Code 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.” The determination of whether and when a separation from service has occurred for proposes of this Agreement shall be made in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulations. (iii) Any provision of this Agreement to the contrary notwithstanding, if at the time of Executive’s separation from service, the Company determines that Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent any payment or benefit that Executive becomes entitled to under this Agreement on account of such separation from service would be considered nonqualified deferred compensation under Code Section 409A, such payment or benefit shall be paid or provided at the date which is the earlier of (i) 6 months and one day after such separation from service and (ii) the date of Executive’s death (the “Delay Period”). Each payment made Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 9(j) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or provided to Executive in a lump-sum, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment dates specified for them herein. (iv) Any reimbursements and the right to a series of installment payments in-kind benefits provided under this Agreement that constitute deferred compensation within the meaning of Code Section 409A shall be made or provided in accordance with the requirements of Code Section 409A, including that (A) in no event shall any fees, expenses or other amounts eligible to be reimbursed by the Company under this Agreement be paid later than the last day of the calendar year next following the calendar year in which the applicable fees, expenses or other amounts were incurred; (B) the amount of expenses eligible for reimbursement, or in-kind benefits that the Company is obligated to pay or provide, in any given calendar year shall not affect the expenses that the Company is obligated to reimburse, or the in-kind benefits that the Company is obligated to pay or provide, in any other calendar year, provided that the foregoing clause (B) 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; (C) Executive’s right to have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit; and (D) in no event shall the Company’s obligations to make such reimbursements or to provide such in-kind benefits apply later than Executive’s remaining lifetime (or if longer, through the 6th anniversary of the Effective Date). (v) For purposes of Code Section 409A, Executive’s right to receive any installment payments 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 (for example, “payment shall be made within 30 days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent such payment is subject to Code Section 409A. (vi) To the extent the terms of this subsection 9(j) conflict with the terms of an equity award granted pursuant to this Agreement, this subsection 9(j) shall govern.

Compliance with Code Section 409A. The intent of the parties It is intended that all terms and payments and benefits under this Agreement comply with (or are be exempt from from) and be administered in accordance with Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (“Section 409A”) so as not to subject you to payment of interest or compliance with) the requirements of Code any additional tax under Section 409A. Any Accordingly, notwithstanding any other provision of this Agreement: (i) All terms of this the Agreement that are undefined or ambiguous shall be interpreted in a manner that complies is consistent with Code Section 409A to the extent if necessary to comply with Code or be exempt from Section 409A. Notwithstanding anything herein to the contraryFor example, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the no payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits may be made due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such the termination is also of employment satisfies the requirements of a “separation from service” within the meaning of under Section 409A of the Code and, for purposes and related regulations. If payment or provision of any such provision of this Agreement, references to a “termination,” “termination of employment” amount or like terms shall mean separation from service. Each payment made benefit under this Agreement at the time specified would subject such amount or benefit to any additional tax under Section 409A, the payment or provision of such amount or benefit will be postponed, if possible, to the earliest commencement date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. The parties agree, to the extent reasonably possible, to amend this Agreement in order to comply with Section 409A and avoid the imposition of any interest or additional tax under Section 409A; provided, however, that neither party shall be treated as a separate payment and required to amend this Agreement if such amendment would change the total amount payable by the Company pursuant to this Agreement. The right to a series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments. (ii) To the extent that (A) the you are determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, (B) any amounts payable under this Agreement represent amounts that are subject to Section 409A, and (C) such amounts are payable on your “separation from service,” within the meaning of Section 409A, then such amounts will not be payable to you before the date that is six months and one day after your separation from service. Payments under this section to which you would otherwise be entitled during the six-month suspension period following your separation from service will be accumulated and paid on the first day permitted under this section. (iii) All reimbursements under this Agreement will be made as soon as practicable following submission of a reimbursement request, but no later than the end of the year following the year during which the underlying expense was incurred or paid. The amount of expenses eligible for reimbursement, or in-kind benefits provided, during one taxable year will not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. The right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (iv) The Company makes no representation or warranty to you with regard to the application of Section 409A to any amounts payable pursuant to this Agreement and shall not have any liability to you for any interest, additional tax, or other adverse consequence arising under Section 409A with respect to this Agreement.

Compliance with Code Section 409A. The intent of the parties (a) It is intended that payments and benefits under this Agreement shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes Code, or an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code to Section 409A to of the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to Code. Without limiting the contrary, (i) if, on generality of the date of terminationforegoing, the Executive is a Parties intend that all payments made hereunder shall qualify for either the “specified employeeshort‑term deferral” as defined in exception or the separation pay exception or another exception under Section 409A of the Code, and this Agreement shall be interpreted, to the deferral of the commencement of any maximum extent possible, consistent with such intent. All payments or benefits otherwise payable hereunder as to be made upon a result of such termination of employment is under this Agreement may only be made upon a “separation from service” under Section 409A of the Code to the extent necessary in order to prevent avoid the imposition of penalty taxes on the Employee pursuant to Section 409A of the Code. In no event may the Employee, directly or indirectly, designate the calendar year of any accelerated payment under this Agreement that is considered deferred compensation under Section 409A of the Code, and to the extent required by Section 409A of the Code, any payment that may be paid in more than one taxable year shall be paid in the later taxable year. (b) Notwithstanding anything to the contrary in this Agreement, all reimbursements and in‑kind benefits provided under this Agreement that are subject to Section 409A of the Code shall be made in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Employee’s lifetime (or additional tax under during a shorter period of time specified in this Agreement); (ii) the amount of expenses eligible for reimbursement, or in‑kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in‑kind benefits to be provided, in any other calendar year; (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred; and (iv) the right to reimbursement or in‑kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any other provision of this Agreement to the contrary, if the Employee is considered a “specified employee” for purposes of Section 409A of the Code Section 409A, then (as determined in accordance with the methodology established by the Company will defer and its Affiliates as in effect on the commencement Termination Date), any payment that constitutes nonqualified deferred compensation within the meaning of Section 409A of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided Code that is otherwise due to the Executive) until Employee under this Agreement during the date that is six‑month period immediately following the Employee’s separation from service on account of the Employee’s separation from service shall instead be paid on the first business day of the seventh month following his separation from service (the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii“Delayed Payment Date”) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid with interest calculated at the time specified under this Section without any interest thereon. Notwithstanding anything to short‑term Applicable Federal Rate as in effect for the contrary hereinmonth in which the Termination Date occurs, to the extent required by Code necessary to prevent the imposition of tax penalties on the Employee under Section 409A409A of the Code. If the Employee dies prior to the Delayed Payment Date, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for then the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning and entitlements delayed on account of Section 409A of the Code and, for shall be paid to the personal representative of his estate on the first to occur of the Delayed Payment Date or 30 calendar days after the date of the Employee’s death. (d) For purposes of any such provision applying the provisions of Code Section 409A to this Agreement, references each separately identified amount to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made which the Employee is entitled under this Agreement shall be treated as a separate payment and payment. In addition, to the right to a extent permissible under Code Section 409A, any series of installment payments under this Agreement is to shall be treated as a right to a series of separate 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.

Compliance with Code Section 409A. The intent of 20.1 This Agreement and the parties is that payments and benefits under this Agreement hereunder are intended to comply with with, or are exempt from qualify for exemption from, the requirements of Section 409A of the Code (including the Treasury Regulations and other administrative guidance promulgated thereunder) (“Section 409A”), and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies consistent with Code Section 409A to the extent necessary to comply with Code Section 409A. such intent. 20.2 Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, the Executive Employee’s termination of employment Employee is a “specified employee” as defined in Section 409A of the Code409A, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) to the Executive) extent necessary to comply with the requirements of Section 409A until the Company’s first regular payroll date that is the first business day more than six months following Employee’s termination of the seventh month following the date of termination employment with Company (or the earliest date as is permitted under Code Section 409A). Upon the first business day following the expiration of the applicable Section 409A period, all payments deferred pursuant to the preceding sentence shall be paid in a lump sum to Employee (or Employee’s estate or beneficiaries), and (ii) if any remaining payments due to Employee under this Agreement shall be paid as otherwise provided herein. 20.3 If any other payments of money or other benefits due to the Executive Employee hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment payments or other provision of benefits compliant under Code Section 409A. In 409A or such payments or benefits shall be restructured, to the event extent possible, in a manner, determined by the Company and Employee, that payments under this Agreement are deferred pursuant to this Section in order to prevent any does not cause such an accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. tax. 20.4 Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean a “separation from service. Each ” within the meaning of Section 409A. 20.5 For purposes of Section 409A, each payment made under this Agreement shall be treated designated as a “separate payment and payment” within the right meaning of Section 409A. Notwithstanding anything to a series of installment payments the contrary in this Agreement, all taxable reimbursements provided under this Agreement is that are subject to Section 409A shall be treated made in accordance with the requirements of Section 409A. The amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year. Reimbursement of an eligible expense shall be made in accordance with the Company’s policies and practices and as a otherwise provided herein, provided, that, in no event shall reimbursement be made after the last day of the year following the year in which the expense was incurred. The right to a series of separate payments.reimbursement is not subject to liquidation or exchange for another benefit. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A.

Compliance with Code Section 409A. The intent This Agreement is intended to satisfy the requirements of the parties is that payments and benefits under this Agreement comply with or are exempt from Code Section 409A of and the Code Treasury Regulations issued thereunder (together, “Section 409A”) with respect to amounts subject thereto, and this Agreement shall be interpreted and construed consistent with such intent (including that any ambiguities or ambiguous terms in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall will be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code or otherwise be exempt from Section 409A) so that none of the payments described in this Agreement will be subject to the additional tax imposed under Section 409A. Each installment payment of compensation pursuant to this Agreement shall be treated as a separate payment of compensation for purposes of applying Section 409A. If any payment subject to Section 409A is contingent on the delivery of a release by you and could occur in either of two years, the payment will occur in the later year. Notwithstanding anything herein in this Agreement to the contrary, (i) if, on in the date of termination, the Executive is event that you are deemed to be a “specified employee” as defined in within the meaning of Section 409A(a)(2)(B)(i), no payments subject to Section 409A that are made by reason of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a your “separation from service” within the meaning of Section 409A shall be made to you (or your estate) prior to the date that is six (6) months after the date of the Code and, for purposes of any such provision of this Agreement, references to a your “termination,” “termination of employment” or like terms shall mean separation from service” or, if earlier, your date of death. Each Immediately following any applicable six (6) month delay, all such delayed payments will be paid to you (or your estate) in a single lump sum. That said, Triumph does not and cannot guarantee any particular tax treatment for amounts payable hereunder. Except for Triumph’s responsibility to withhold applicable income and employment taxes from amounts payable to you hereunder, Triumph shall not be responsible for the payment made of any applicable taxes incurred by you on amounts paid or provided to you under this Agreement and in no event shall be treated as a separate payment and the right to a series of installment payments under Triumph have any responsibility or liability if this Agreement is does not meet any applicable requirements of Code Section 409A. Under no circumstances may the time or schedule of any payment made or benefit described in this Agreement be accelerated or subject to be treated further deferral except as a right to a series of separate payments.otherwise permitted under Section 409A.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement intended to comply with or are exempt from the requirements of Section 409A of the Code (including the exceptions thereto), to the extent applicable, and this the Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) accordance with such requirements. If any provision contained in the Agreement conflicts with the requirements of Section 409A of the Code Section 409A. Any terms of this (or the exemptions intended to apply under the Agreement), the Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A deemed to the extent necessary be reformed to comply with the requirements of Section 409A of the Code Section 409A. (or the applicable exemptions thereto). Notwithstanding anything herein to the contrarycontrary herein, (i) if, on for purposes of determining the date of terminationExecutive’s entitlement to the Severance Benefits, the Executive’s employment shall not be deemed to have terminated unless and until the Executive is incurs a “specified employeeseparation from service” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, if a termination of employment shall not be deemed to have occurred for purposes of any provision of payment or benefit under this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also due to a “separation from service” within for purposes of the meaning rules under Treas. Reg. § 1.409A-3(i)(2) (payments to specified employees upon a separation from service) and the Executive is determined to be a “specified employee” (as determined under Treas. Reg. § 1.409A-1(i)), such payment shall, to the extent necessary to comply with the requirements of Section 409A of the Code, be made on the later of (x) the date specified by the foregoing provisions of this Agreement or (y) the date that is six (6) months after the date of the Executive’s separation from service (or, if earlier, the date of the Executive’s death). Any installment payments that are delayed pursuant to this Section 11 shall be accumulated and paid in a lump-sum on the first day of the seventh month following the Date of Termination (or, if earlier, upon the Executive’s death) and the remaining installment payments shall begin on such date in accordance with the schedule provided in this Agreement. The Severance Benefits are intended not to constitute deferred compensation subject to Section 409A of the Code andto the extent such Severance Benefits are covered by (i) the “short-term deferral exception” set forth in Treas. Reg. § 1.409A-1(b)(4), (ii) the “two times severance exception” set forth in Treas. Reg. § 1.409A-1(b)(9)(iii), or (iii) the “limited payments exception” set forth in Treas. Reg. § 1.409A-1(b)(9)(v)(D). The short-term deferral exception, the two times severance exception and the limited payments exception shall be applied to the Severance Benefits in order of payment in such manner as results in the maximum exclusion of such Severance Payments from treatment as deferred compensation under Section 409A of the Code. Each installment of the Severance Benefits shall be deemed to be a separate payment for purposes of Section 409A of the Code. In no event whatsoever shall the Company or any such provision of this Agreementits Affiliates be liable for any additional tax, references interest or penalties that may be imposed on the Executive under Section 409A of the Code or any damages for failing to a “termination,” “termination comply with Section 409A of employment” or like terms shall mean separation from service. 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 paymentsCode.

Compliance with Code Section 409A. The intent of To the extent applicable, the parties is hereto intend that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code, and all rules, regulations and other similar guidance issued thereunder (“Code and Section 409A”). The parties agree that this Agreement shall at all times be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein 409A (including compliance with any applicable exemptions from Code Section 409A) and that should any provision be found not in compliance with Code Section 409A, the parties are contractually obligated to execute any and all amendments to this Agreement deemed necessary and required by the contrary, (i) if, on the date Company’s legal counsel to achieve compliance with Code Section 409A or any applicable exemption. By execution and delivery of terminationthis Agreement, the Executive irrevocably waives any objections he may have to the amendments required by Code Section 409A. The parties also agree that in no event shall any payment required to be made pursuant to ARTICLE 10 of this Agreement that is considered deferred compensation within the meaning of Code Section 409A be made to the Executive unless he has incurred a “specified employee” separation from service (as defined in Code Section 409A). In the event amendments are required to make this Agreement compliant with Code Section 409A, the Company shall use its best efforts to provide the Executive with substantially the same benefits and payments he would have been entitled to pursuant to this Agreement had Code Section 409A not applied, but in a manner that is compliant with Code Section 409A or any of its exemptions. The manner in which the immediately preceding sentence shall be implemented shall be the subject of good faith negotiations of the Code, parties. The parties also agree that in no event shall any payment required to be made pursuant to this Agreement that is considered deferred compensation within the meaning of Code Section 409A (and is not otherwise exempt from the deferral provisions thereof) be accelerated in violation of Code Section 409A. The parties further agree that any payment that is considered deferred compensation within the commencement meaning of any payments or benefits Code Section 409A (and is not otherwise payable hereunder exempt from the provisions thereof) and is made as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax a separation from service cannot commence under Code Section 409A, then 409A until the Company will defer the commencement lapse of six (6) months after a separation from service (or death of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A, if earlier), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and operated so that the payment of the benefits set forth herein either shall either be exempt from the requirements of Section 409A of the Code or shall comply with the requirements of such provision; provided however that in no event shall the Company be liable to the Executive for or with respect to any taxes, penalties or interest which may be imposed upon the Executive pursuant to Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (id)(i), (d)(iii) ifor (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on the date of terminationthe Executive’s “separation from service,” as such term is defined in Treas. Reg. Section 1.409A-1(h)(1), from the Company (his “Separation from Service”), the Executive is a “specified employee,” as such term is defined in Treas. Reg. Section 409A of 1.409-1(i), as determined from time to time by the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409ACompany, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided 409A Payment shall not be made to the Executive earlier than the earlier of (i) six (6) months after the Executive’s Separation from Service; or (ii) until the date of his death. The 409A Payments under this Agreement that is would otherwise be made during such period shall be aggregated and paid in one lump sum, without interest, on the first business day following the end of the seventh six (6) month period or following the date of termination the Executive’s death, whichever is earlier, and the balance of the 409A Payments, if any, shall be paid in accordance with the applicable payment schedule provided in this Section 4. To the extent any 409A Payment is conditioned on the Executive (or the earliest date as is permitted under Code Section 409A)his legal representative) executing a release of claims, and (ii) if any other payments which 409A Payment would be made in a later taxable year of money or other benefits due to the Executive hereunder could cause than the application of an accelerated or additional tax taxable year in which his Separation from Service occurs if such release were executed and delivered and became irrevocable at the last possible date allowed under Code Section 409Athis Agreement, such payments or other benefits shall 409A Payment will be deferred if deferral will make paid no earlier than such payment or other benefits compliant under Code later taxable year. In applying Section 409A. In the event that payments under this Agreement are deferred 409A to compensation paid pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. Each payment made under this Agreement shall be treated as a separate payment and the any right to a series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments. The Executive hereby acknowledges that he has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A and applicable State tax law. Executive hereby agrees to bear the entire risk of any such adverse federal and State tax consequences and penalty taxes in the event any payment pursuant to this Agreement is deemed to be subject to Code Section 409A, and that no representations have been made to the Executive relating to the tax treatment of any payment pursuant to this Agreement under Code Section 409A and the corresponding provisions of any applicable State income tax laws.

Compliance with Code Section 409A. The intent of the parties It is intended that payments and benefits under this Agreement comply with or are exempt from the provisions of Section 409A of the Code and the regulations and guidance of general applicability issued thereunder (referred to herein as “Section 409A”) so as to not subject the Employee to the payment of additional interest and taxes under Section 409A. In furtherance of this intent, this Agreement shall be interpreted interpreted, operated and construed administered in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies consistent with Code Section 409A these intentions, and to the extent necessary Section 409A would result in the Employee being subject to comply with Code the payment of an excise tax or any other additional income taxes or interest under Section 409A. 409A, the parties agree to amend this Agreement to avoid the application of such taxes and interest. The parties further intend the installment payments contemplated or required by this Agreement to be treated as a series of separate payments for 409A purposes. (A) Notwithstanding anything herein any provision in this Agreement to the contrary, (i) ifas needed to comply with Section 409A, on if the date of termination, the Executive Employee is a “specified employee” (within the meaning of Section 409A), payments due under this Agreement shall be subject to a six (6) month delay such that amounts otherwise payable during the six (6) month period following the Employee’s separation from service (as defined in Section 409A Treasury Reg. §1.409A-1(h)) shall be accumulated and paid in a lump-sum catch-up payment as of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the Employee’s separation from service (or, if earlier, the date of termination the Employee’s death). To the extent that the Employee is required to pay for the cost of any benefits to keep them in full force and effect during the six (or 6) month delay period, the earliest Employee shall also be reimbursed for such out-of-pocket expenses as of the same date as is permitted under Code provided above. (B) This Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits 6 shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, not apply to the extent required by Code Section 409A, a termination of employment shall not such payments can be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 considered to be treated as separation pay that is not part of a right to a series of separate payments.deferred compensation arrangement under Section 409A.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits (a) This Agreement shall be interpreted to avoid any penalty sanctions under this Agreement comply with or are exempt from Section 409A of the Code and (“Section 409A”). If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of Section 409A, (i) all payments to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” within the meaning of such term under Section 409A, (ii) each payment made under this Agreement shall be interpreted treated as a separate payment and construed (iii) 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 Employee, directly or indirectly, designate the calendar year of payment. (b) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in a manner that establishes an exemption from (or compliance with) accordance with the requirements of Code Section 409A. Any terms 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any provision in this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, at the time of Employee’s separation from service with Employer, Employer has securities which are publicly traded on the date of terminationan established securities market, the Executive Employee is a “specified employee” (as defined in Section 409A of the Code, 409A) and the deferral of it is necessary to postpone the commencement of any severance payments or benefits otherwise payable hereunder pursuant to this Agreement as a result of such termination of employment is necessary in order separation from service to prevent any accelerated or additional tax under Code Section 409A, then the Company Employer will defer postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise exempt from Section 409A until the Executive) until first payroll date that occurs after the date that is the first business day of the seventh month six (6) months following the date of termination Employee’s separation from service with Employer (or the earliest date as is permitted determined under Code Section 409A), and (ii) if . If any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred postponed pursuant to this Section 24(c), then such postponed amounts will be paid in order a lump sum to prevent Employee on the first payroll date that occurs after the date that is six (6) months following Employee’s separation from service with Employer. If Employee dies during the postponement period prior to the payment of any accelerated tax or additional tax postponed amount, such amount shall be paid to the personal representative of Employee’s estate within sixty (60) days after the date of Employee’s death. (d) Notwithstanding the foregoing provisions of this Section 24, Employer makes no representations that the payments and benefits provided under Code this Agreement comply with Section 409A, then such payments and in no event shall Employer be paid at the time specified under this Section without liable for all or any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes portion of any provision taxes, penalties, interest or other expenses that may be incurred by Employee on account of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of non-compliance with Section 409A of the Code 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. 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.409A.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from (a) Notwithstanding Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms 4 of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Agreement, for purposes of determining the timing and application of Code Section 409A to amounts payable upon termination of the extent necessary to comply Employee’s employment with Code Section 409A. Notwithstanding anything herein to the contraryCompany, (i) if, on the Date of Termination shall mean the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a Employee’s “separation from service” within the meaning of as such term is defined under Code Section 409A of the Code and, for purposes 409A. Each payment and each installment of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made severance payments provided for under this Agreement shall be treated as a separate payment for purposes of application of Code Section 409A. Subsection (c) below shall not apply to that portion of any amounts payable upon termination of employment which shall qualify as “involuntary severance” under Code Section 409A because such amount (i) does not exceed the lesser of (1) two hundred percent (200%) of the Employee’s annualized compensation from the Company for the calendar year immediately preceding the calendar year during which the termination of employment occurs, or (2) two hundred percent (200%) of the annual limitation amount under Code Section 401(a)(17) (the maximum amount of compensation that may be taken into account for purposes of a tax-qualified retirement plan) for the calendar year during which termination of employment occurs, and (ii) is paid no later than the end of the second calendar year commencing after termination of employment. (b) All payments to Employee determined to come within the definition of “nonqualified deferred compensation” within the meaning of Code Section 409A (“409A Payment”) are intended to comply with all requirements of Code Section 409A, and shall be interpreted in accordance therewith. Neither party individually, nor in combination may accelerate, offset or assign any 409A Payment, except in compliance with Code Section 409A, and no amount shall be paid prior to the earliest date on which it is permitted to be paid under Code Section 409A. Employee shall have no discretion with respect to the timing of payments except as permitted under Code Section 409A. In the event that the Employee is determined to be a “specified employee” (as defined and determined under Code Section 409A) of Company at a time when its stock is deemed to be publicly traded on an established securities market, 409A Payments payable by reason of separation from service shall be paid no earlier than (i) the first day of the seventh (7th) calendar month commencing after separation from service, or (ii) the Employee’s death, consistent with and to the extent necessary to meet the requirements Code Section 409A without the imposition of penalty taxes. Any 409A Payments which are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the release revocation period ends as necessary to comply with Code Section 409A. Any payment delayed by reason of this subsection (c) shall be paid out in a single lump sum on the earliest date permitted under Code Section 409A in order to catch up to the original specified payment schedule. Notwithstanding anything herein to the contrary, no amendment may be made to this Agreement if it would cause the Agreement or any payment hereunder not to be in compliance with Code Section 409A. (c) All benefit plans, programs and policies sponsored by the Company are intended to comply with all requirements of Code Section 409A or to be structured so as to be exempt from the application of Code Section 409A. All expense reimbursement or in-kind benefits provided under this Agreement or, unless otherwise specified in an applicable program or policy, to the extent subject to Code Section 409A, shall comply with the following rules: (i) any such expense reimbursement shall be made by the Company no later than the last day of the taxable year following the taxable year in which such expense was incurred, (ii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) the amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year; provided, that the foregoing clause shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a series limit related to the period the arrangement is in effect. It is the intent of installment payments under the Company that the provisions of this Agreement is and all other plans and programs sponsored by the Company be interpreted to comply in all respects with Code Section 409A, however, the Company shall have no liability to the Employee, or any successor or beneficiary thereof, in the event taxes, penalties or excise taxes may ultimately be determined to be treated applicable to any payment or benefit received by the Employee or any successor or beneficiary thereof, nor for reporting in good faith any payment or benefit as a right subject to a series of separate payments.Code Section 409A.

Compliance with Code Section 409A. The intent A. It is the intention of Xxxxxx and the parties is Executive that payments the payments, benefits and benefits under rights to which the Executive could be entitled pursuant to this Agreement comply with or are exempt from Code Section 409A of the Internal Revenue Code of 1986, as amended ("Code"), the Treasury regulations and other guidance promulgated or issued thereunder ("Section 409A"), to the extent that the requirements of Section 409A are applicable thereto, and after application of all available exemptions, including but not limited to, the "short-term deferral rule" and "involuntary separation pay plan exception" and the provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms intention. If any provision of this Agreement that are undefined (or ambiguous shall be interpreted in a manner that complies with of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A 409A, Xxxxxx shall, upon the specific request of the Executive, use its reasonable business efforts to the extent necessary in good faith reform such provision to comply with Code Section 409A. Notwithstanding anything herein 409A; provided, that to the contrary, (i) if, on the date of terminationmaximum extent practicable, the Executive is a “specified employee” as defined in Section 409A of the Code, original intent and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due economic benefit to the Executive hereunder and Xxxxxx of the applicable provision shall be maintained, but Xxxxxx shall have no obligation to make any changes that could cause create any additional economic cost or loss of benefit to Xxxxxx. Xxxxxx shall not have any liability to the Executive with respect to tax obligations that result from the application of an accelerated or additional tax under Code Section 409A, such 409A and makes no representation with respect to the tax treatment of the payments or other and/or benefits provided under this Agreement. Any provision required for compliance with Section 409A that is omitted from this Agreement shall be deferred incorporated herein by reference and shall apply retroactively, if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under necessary, and be deemed a part of this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary same extent as though expressly set forth herein. B. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, to the extent required except as permitted by Code Section 409A, a termination (i) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, (ii) the amount of employment expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expense eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed violated with regard to have occurred for expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense was incurred. C. For purposes of any provision of this Agreement providing for applying the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning provisions of Section 409A of the Code and, for purposes of any such provision of to this Agreement, references each separately identified amount to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made which the Executive is entitled under this Agreement shall be treated as a separate payment and within the right meaning of Section 409A. In addition, to a the extent permissible under Section 409A, any series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments. D. Neither Xxxxxx nor the Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. E. If and to the extent required to comply with Section 409A, a Termination of Employment, as defined above, shall not be deemed to have occurred for purposes of this Agreement providing for the payment of any amounts or benefits upon or following a Termination of Employment unless such termination is also a "Separation from Service" within the meaning of Section 409A (excluding death) and, for purposes of any provision of this Agreement, references to Termination of Employment, "termination," "termination of employment" or like terms shall mean "Separation from Service" (excluding death). F. If the Executive is deemed on the date of termination of his employment to be a "specified employee," within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by Xxxxxx from time to time, or if none, the default methodology, then with regard to any payment or the providing of any benefit subject to this Section, to the extent required to be delayed in compliance with Code Section 409A(a)(2)(B), and any other payment or the provision of any other benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of the Executive's Separation from Service or (ii) the date of the Executive's death. In this regard, it is the intention and understanding of Xxxxxx and the Executive that payments made following a Termination of Employment under Paragraph "1" shall be exempt under the "short-term deferral rule" and "involuntary separation pay plan exception", and other applicable exceptions, from the requirements of Code Section 409A(a)(2)(B), and are not required and shall not be delayed. Absent such exception, on the first day of the seventh month following the date of Executive's Separation from Service or, if earlier, on the date of his death, all payments delayed pursuant to this Section (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 any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. The determination of whether the Executive is a "specified employee" shall be made by Xxxxxx in good faith applying Section 409A.

Compliance with Code Section 409A. The intent i. It is the intention of both the parties is Company and Executive that payments the benefits and benefits under rights to which Executive could be entitled pursuant to this Agreement comply with or are exempt from Section 409A of the Code and the Treasury Regulations and other guidance promulgated or issued thereunder (“Section 409A”), to the extent that the requirements of Section 409A are applicable thereto, and the provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (intention. If Executive or compliance with) the requirements of Code Company believes, at any time, that any such benefit or right that is subject to Section 409A. Any 409A does not so comply, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of this Agreement such benefits and rights such that are undefined or ambiguous shall be interpreted in a manner that complies they comply with Code Section 409A to (with the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, most limited possible economic effect on Executive and on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, Company). ii. If and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code to comply with Section 409A, a no payment or benefit required to be paid under this Agreement on account of termination of Executive’s employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment made unless such termination is also and until Executive incurs a “separation from service” within the meaning of Section 409A 409A. iii. If Executive is a “specified Executive,” then no payment or benefit that is payable on account of the Code andExecutive’s “separation from service”, as that term is defined for purposes of Section 409A, shall be made before the date that is six months after Executive’s “separation from service” (or, if earlier, the date of Executive’s death) if and to the extent that such payment or benefit constitutes deferred compensation (or may be nonqualified deferred compensation) under Section 409A and such deferral is required to comply with the requirements of Section 409A. Any payment or benefit delayed by reason of the prior sentence shall be paid out or provided in a single lump sum at the end of such required delay period in order to catch up to the original payment schedule. For purposes of this Section, Executive shall be considered to be a “specified Executive” if, at the time of his or her separation from service, Executive is a “key Executive”, within the meaning of Section 416(i) of the Code, of the Company (or any such provision person or entity with whom the Company would be considered a single employer under Section 414(b) or Section 414(c) of the Code) any stock in which is publicly traded on an established securities market or otherwise. iv. Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, references and no amount that is subject to a “termination,” “termination Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. v. For purposes of employment” or like terms shall mean separation from service. Each payment made applying the provisions of Section 409A to this Agreement, each separately identified amount to which Executive is entitled under this Agreement shall be treated as a separate payment and payment. In addition, to the right to a extent permissible under Section 409A, any series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of This Agreement and the parties is that payments and benefits under this Agreement comply with or hereunder are exempt intended to be exempt, to the greatest extent possible, from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and to the deferral extent not so exempt, to comply with the requirements of Section 409A of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A)Code, and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make construed and administered consistent with such payment or other benefits compliant under Code Section 409A. intent. In the event that payments under the terms of this Agreement are deferred pursuant would subject the Executive to this taxes or penalties under Section in order 409A of the Code (“409A Penalties”), the Employer and the Executive shall cooperate diligently to prevent any accelerated tax or additional tax under Code Section 409A, then amend the terms of the Agreement to avoid such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein409A Penalties, to the extent required by Code Section 409Apossible; provided that such amendment shall not increase or reduce (in the aggregate) the amounts payable to the Executive hereunder. Any taxable reimbursement payable to the Executive pursuant to this Agreement shall be paid to the Executive no later than the last day of the calendar year following the calendar year in which the Executive incurred the reimbursable expense. Any amount of expenses eligible for taxable reimbursement, or such in-kind benefit provided, during a calendar year shall not affect the amount of such expenses eligible for reimbursement, or such in-kind benefit to be provided, during any other calendar year. The right to such reimbursement or such in-kind benefits pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit. Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. A termination of employment shall not be deemed to have occurred for purposes of any provision of this the Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes Code. If on the date of any such provision termination of this Agreement, references to employment the Executive is a “termination,specified employee” “termination within the meaning of employment” that term under Section 409A of the Code, then, notwithstanding any other provision herein, with regard to any payment or like terms shall mean benefit that is properly treated as nonqualified deferred compensation under Section 409A of the Code (after taking into account all exclusions applicable to such payment or benefit) and is payable on account of such separation from service, such payment or benefit shall not be made or provided prior to the expiration of the earlier of the six-month period measured from the date of such separation from service, or the Executive’s death. Each payment made under All payments and benefits delayed pursuant to the preceding provisions of this Agreement Section 8.5(a) shall be treated as a separate payment and paid to the right to a series Executive on the first payroll date following the end of installment payments under this Agreement is to be treated as a right to a series of separate paymentsthe delay period.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits (A) This Agreement shall be interpreted to avoid any penalty sanctions under this Agreement comply with or are exempt from Section 409A of the Code and (“Section 409A”). If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of Section 409A, (i) all payments to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” within the meaning of such term under Section 409A, (ii) each payment made under this Agreement shall be interpreted treated as a separate payment and construed (iii) 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 Executive, directly or indirectly, designate the calendar year of payment. (B) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in a manner that establishes an exemption from (or compliance with) accordance with the requirements of Code Section 409A. Any terms 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (C) Notwithstanding any provision in this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, at the time of Executive’s separation from service with Employer, Employer has securities which are publicly traded on the date of terminationan established securities market, the Executive is a “specified employee” (as defined in Section 409A of the Code, 409A) and the deferral of it is necessary to postpone the commencement of any severance payments or benefits otherwise payable hereunder pursuant to this Agreement as a result of such termination of employment is necessary in order separation from service to prevent any accelerated or additional tax under Code Section 409A, then the Company Employer will defer postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise exempt from Section 409A until the first payroll date that occurs after the date that is six (6) months following Executive’s separation from service with Employer (as determined under Section 409A). If any payments are postponed pursuant to this Subsection 24(C), then such postponed amounts will be paid in a lump sum to Executive on the first business day payroll date that occurs after the date that is six (6) months following Executive’s separation from service with Employer. If Executive dies during the postponement period prior to the payment of any postponed amount, such amount shall be paid to the seventh month following personal representative of Executive’s estate within sixty (60) days after the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsExecutive’s death.”

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments intended, and benefits under this Agreement shall be construed and interpreted, to comply with or are exempt from Section 409A of the Internal Revenue Code and this Agreement of 1986, as amended (the “Code”) and, if necessary, any provision shall be interpreted held null and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A void to the extent necessary such provision (or part thereof) fails to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date For purposes of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the each payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. Each payment made compensation under this Agreement shall be treated as a separate payment of compensation. Any amounts payable solely on account of an involuntary termination shall be excludible from the requirements of Code Section 409A, either as separation pay or as short-term deferrals to the maximum possible extent. Any reference to the Executive’s “termination” or “termination of employment” shall mean the Executive’s “separation from service” as defined in Code Section 409A from the Company and all entities with whom the right to a series of installment payments under this Agreement is to Company would be treated as a right single employer for purposes of Code Section 409A. Notwithstanding anything to the contrary in this Agreement, if the Company determines (i) that on the date the Executive’s employment with the Company terminates or at such other time that the Company determines to be relevant, the Executive is a series “specified Executive” (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of separate paymentsthe Company and (ii) that any payments to be provided to the Executive pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date that is six (6) months after the date of the Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) with the Company, or, if earlier, the date of the Executive’s death. Any payments delayed pursuant to this Section shall be made in a lump sum on the first day of the seventh (7th) month following the Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)), or, if earlier, the date of the Executive’s death. Nothing herein shall be construed as a guarantee of any particular tax treatment to Executive and the Company shall have no liability to the Executive with respect to any penalties that might be imposed on the Executive by Code Section 409A for any failure of this Agreement or otherwise.

Compliance with Code Section 409A. The intent Any payment under this Section 7 is subject to the provisions of this Section 7(h) (except for a payment pursuant to Disability or death under Section 7(d) or (e)). If Executive is a "Specified Employee" of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements Company for purposes of Code Section 409A. Any terms 409A at the time of this Agreement that are undefined or ambiguous shall be interpreted a payment event in a manner that complies with Section 7(b) and if no exception from Code Section 409A applies in whole or in part, the severance or other payments will be made to Executive by the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, Company on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination the Executive's Separation from Service (or the earliest date "409A Payment Date"). Should this Section 7(h) result in a delay of payments to Executive, the Company will begin to make the payments as is permitted under Code described in this Section 409A)7, and (ii) if provided that any other payments of money or other benefits due to the Executive hereunder could cause amounts that would have been payable earlier but for the application of an accelerated this Section 7(h), will be paid in lump-sum on the 409A Payment Date along with accrued interest at the rate of interest announced by the Company's primary bank from time to time as its prime rate from the date that payments would otherwise have been made under this Agreement. The balance of the severance payments will be payable in accordance with regular payroll timing and the COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in Code Section 409A(a)(2)(B)(i), or additional tax under any successor provision and the issued treasury regulations and rulings. "Separation from Service" or "Termination of Employment" means, with respect to any payment that is subject to Code Section 409A, such payments either (a) termination of Executive's employment with Company and all affiliates, or (b) a permanent reduction in the level of bona fide services Executive provides to Company and all affiliates to an amount that is 20% or less of the average level of bona fide services Executive provided to Company in the immediately preceding 36 months, with the level of bona fide service calculated in accordance with Treasury Regulations Section 1.409A-1(h)(1)(ii). Solely for purposes of determining whether Executive has a "Separation from Service," Executive's employment relationship is treated as continuing while Executive is on military leave, sick leave, or other benefits shall bona fide leave of absence (if the period of such leave does not exceed six months, or if longer, so long as Executive's right to reemployment with Company or an affiliate is provided either by statute or contract). If Executive's period of leave exceeds six months and Executive's right to reemployment is not provided either by statute or by contract, the employment relationship is deemed to terminate on the first day immediately following the expiration of such six-month period. Whether a termination of employment has occurred will be deferred if deferral will make such payment or other benefits compliant under determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to Code Section 409A. In If the event that payments under this Agreement are deferred pursuant payment is not subject to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a term termination of employment shall not will be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsgiven its ordinary meaning.

Compliance with Code Section 409A. The intent 19.1 If any of the parties is that payments and benefits under set forth in this Agreement comply with or are exempt from deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended, or any successor statute, regulation and guidance thereto (“Code Section 409A”), any termination of employment triggering payment of such benefits must constitute a “separation from service” under Code Section 409A before distribution of such benefits can commence. For purposes of clarification, this paragraph shall not cause any forfeiture of benefits on the part of Executive, but shall only act as a delay until such time as a “separation from service” occurs. 19.2 It is intended that each installment of the payments and benefits provided under this Agreement shall be treated as a separate “payment” for purposes of Code Section 409A. Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Code Section 409A. 19.3 Any reimbursements or direct payment of Executive’s expenses subject to Code Section 409A shall be made no later than the end of the calendar year following the calendar year in which such expense is incurred by Executive. Any reimbursement or right to direct payment of Executive’s expense in one calendar year shall not affect the amount that may be reimbursed or paid for in any other calendar year and a reimbursement or payment of Executive’s expense (or right thereto) may not be exchanged or liquidated for another benefit or payment. 19.4 Notwithstanding any other provision of this Agreement to the contrary, the Agreement shall be interpreted and construed at all times administered in a manner that establishes an exemption from (or compliance with) avoids the requirements inclusion of compensation in income under Code Section 409A. Any terms of this Agreement 409A(a)(1), such that are undefined or if a provision is ambiguous shall and may be interpreted in a manner that complies with Code Section 409A 409A(a)(1), the parties intend that interpretation to apply. For purposes of clarification, this Section 19.4 shall be a rule of construction and interpretation and nothing in this Section 19.4 shall cause a forfeiture of benefits on the part of Executive. 19.5 Notwithstanding any other provision of this Agreement to the contrary, if any amount (including imputed income) to be paid to Executive pursuant to this Agreement as a result of Executive’s termination of employment is “deferred compensation” subject to Code Section 409A, and if Executive is a “Specified Employee” (as defined under Code Section 409A) as of the date of Executive’s termination of employment hereunder, then, to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to avoid the contrary, (i) if, on the date imposition of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments excise taxes or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax other penalties under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits benefits, if any, scheduled to be paid by Company to Executive hereunder during the first six (without any reduction in such payments or benefits ultimately 6) month period following the date of a termination of employment hereunder shall not be paid or provided to the Executive) until the date that which is the first business day after six (6) months have elapsed since Executive’s termination of employment for any reason other than death. Any deferred compensation payments delayed in accordance with the seventh month following the date terms of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments 19.5 shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, in a termination of employment shall not be deemed to lump sum after six (6) months have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “elapsed since Executive’s termination of employment” or like terms shall mean separation from service. Each payment Any other payments will be made under this Agreement shall be treated as a separate payment and according to the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentstiming provided for herein.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and Code, as amended (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with the Company, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with the Company for purposes of any provision of this Agreement providing for the and no payment of amounts or benefits upon or following a termination of employment unless such termination is also shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitute deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 12(g); provided that neither the Company nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent (a) Notwithstanding the provisions of sections 7, 8 and 9, if the parties Officer is that payments and benefits under this Agreement comply with or are exempt from a specified employee within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), as determined by the Board in accordance with the election made by the Bank for determining specified employees, any amounts payable under sections 7, 8 or 9 (and this Agreement shall any other payments to which the Officer may be interpreted entitled) which constitute “deferred compensation” within the meaning of Section 409A and construed in a manner that establishes an exemption from which are otherwise scheduled to be paid during the first six months following the Officer’s termination of employment (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement other than any payments that are undefined or ambiguous shall be interpreted in a manner that complies with Code permitted under Section 409A to be paid within six months following termination of employment of a specified employee) shall be suspended until the extent necessary to comply with Code Section 409A. Notwithstanding anything herein six-month anniversary of the Officer’s termination of employment (or the Officer’s death if sooner), at which time all payments that were suspended shall be paid to the contraryOfficer (or her estate) in a lump sum, together with interest on each suspended payment at the prime rate (ias reported in the Wall Street Journal) if, on from the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order suspension to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination payment. (b) Payment or reimbursement of each of the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such business expense payments or other benefits reimbursements called for by this Agreement with respect to any calendar year shall be deferred if deferral will make such not affect the amount eligible for payment or reimbursement in any other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409Acalendar year, then and such payments shall and reimbursements may not be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a exchanged for cash or another benefit. (c) 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 upon or following a termination of employment unless such termination is also a “separation from service” (within the meaning of Code Section 409A of the Code and, for 409A). (d) For purposes of any such provision of this AgreementSection 409A, references to a “termination,” “termination of employment” each payment under sections 7, 8 or like terms shall mean separation from service. Each payment made under this Agreement shall 9 (and each other severance plan payment) will be treated as a separate payment payment. (e) It is intended that this Agreement comply with the provisions of Section 409A and the right regulations and guidance of general applicability issued thereunder so as to a series not subject the Officer to the payment of installment payments additional interest and taxes under Section 409A, and in furtherance of this intent, this Agreement is to shall be treated as interpreted, operated and administered in a right to a series of separate paymentsmanner consistent with these intentions.

Compliance with Code Section 409A. The intent of It is intended that the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinSeverance Benefits are, to the greatest extent required by Code Section 409Apossible, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for exempt from the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning application of Section 409A of the Code and(“Section 409A”) and the Plan shall be construed and interpreted accordingly. However, for purposes if the Company (or, if applicable, the successor entity thereto) determines that all or a portion of the payments and benefits provided under the Plan constitute "deferred compensation" under Section 409A and that the Eligible Employee is a "specified employee" of the Company (or Covered Employer) or any successor entity thereto, as such provision term is defined in Section 409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the incurrence of this Agreementthe adverse personal tax consequences under Section 409A, references the timing of the applicable payments shall be delayed until the first payroll date following the date that is six months following the Eligible Employee's "separation from service" (as defined under Section 409A) and the Company (or Covered Employer) (or the successor entity thereto, as applicable) shall (A) pay to the Eligible Employee a “termination,” “lump sum amount equal to the sum of the payments that the Eligible Employee would otherwise have received during such six-month period had no such delay been imposed, and (B) commence paying the balance of the payments in accordance with the applicable payment schedule set forth in the Plan. To the extent required by Section 409A, any payments to be made to an Eligible Employee upon his or her termination of employment” or like terms employment shall mean only be made upon such Eligible Employee’s separation from service. Each payment made Neither the Company nor any Covered Employer makes any representations that the payments and benefits provided under this Agreement the Plan comply with Section 409A and in no event shall the Company or any Covered Employer be treated as a separate payment and liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the right to a series Eligible Employee on account of installment payments under this Agreement is to be treated as a right to a series of separate payments.noncompliance with Section 409A.

Compliance with Code Section 409A. The intent (a) Notwithstanding the provisions of sections 7, 8, 9 and 11, if the parties Officer is that payments and benefits under this Agreement comply with or are exempt from a specified employee within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), as determined by the Board in accordance with the election made by the Holding Company for determining specified employees, any amounts payable under sections 7, 8, 9 or 11 (and this Agreement shall any other payments to which the Officer may be interpreted entitled) which constitute “deferred compensation” within the meaning of Section 409A and construed in a manner that establishes an exemption from which are otherwise scheduled to be paid during the first six months following the Officer’s termination of employment (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement other than any payments that are undefined or ambiguous shall be interpreted in a manner that complies with Code permitted under Section 409A to be paid within six months following termination of employment of a specified employee) shall be suspended until the extent necessary to comply with Code Section 409A. Notwithstanding anything herein six-month anniversary of the Officer’s termination of employment (or the Officer’s death if sooner), at which time all payments that were suspended shall be paid to the contraryOfficer (or her estate) in a lump sum, together with interest on each suspended payment at the prime rate (ias reported in the Wall Street Journal) if, on from the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order suspension to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination payment. (b) Payment or reimbursement of each of the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such business expense payments or other benefits reimbursements called for by this Agreement with respect to any calendar year shall be deferred if deferral will make such not affect the amount eligible for payment or reimbursement in any other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409Acalendar year, then and such payments shall and reimbursements may not be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a exchanged for cash or another benefit. (c) 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 upon or following a termination of employment unless such termination is also a “separation from service” (within the meaning of Code Section 409A of the Code and, for 409A). (d) For purposes of any such provision of this AgreementSection 409A, references to a “termination,” “termination of employment” each payment under sections 7, 8, 9 or like terms shall mean separation from service. Each payment made under this Agreement shall 11 (and each other severance plan payment) will be treated as a separate payment payment. (e) It is intended that this Agreement comply with the provisions of Section 409A and the right regulations and guidance of general applicability issued thereunder so as to a series not subject the Officer to the payment of installment payments additional interest and taxes under Section 409A, and in furtherance of this intent, this Agreement is to shall be treated as interpreted, operated and administered in a right to a series of separate paymentsmanner consistent with these intentions.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifthis Employment Agreement is intended to be interpreted and operated so that the payments and benefits set forth herein either shall either be exempt from the requirements of Code Section 409A or shall comply with the requirements of such provision; provided, on however, that in no event shall the date of termination, Company be liable to the Executive is a “specified employee” as defined in for or with respect to any taxes, penalties or interest which may be imposed upon the Executive pursuant to Section 409A of 409A. The Executive hereby acknowledges and agrees that no representations have been made to the Code, and Executive relating to the deferral of the commencement tax treatment of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order payment pursuant to prevent any accelerated or additional tax this Agreement under Code Section 409A, then 409A and the Company will defer the commencement of the payment corresponding provisions of any such payments or benefits hereunder applicable state income tax laws. Specifically, the parties agree as follows: (without any reduction in such payments or benefits ultimately paid or provided to the Executivea) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits Each severance payment shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentspayments as set forth in Treasury Regulation 1.409A-2(b)(2)(iii) and no severance payment shall be paid later than the last day of the second taxable year of the Executive following the taxable year of the Executive’s “separation from service” as defined in Treasury Regulation 1.409A-1(h) (“Separation From Service”). To the extent that any severance payment constitutes a “deferral of compensation” subject to Code Section 409A (a “409A Payment”), then, (A) in the event that a termination of Executive’s employment does not constitute a Separation From Service, such 409A Payment shall begin at such time as the Executive has otherwise experienced such a Separation from Service, and the date of such Separation from Service shall be deemed to be his Termination Date for purposes of Section 5 hereof, and (B) if on the date of the Executive’s Separation from Service, the Executive is a “specified employee,” as such term is defined in Treas. Reg. Section 1.409A-1(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Executive earlier than the earlier of (i) six (6) months after the Executive’s Separation from Service; or (ii) the date of his death. The 409A Payments under this Agreement that would otherwise be made during such period shall be aggregated and paid in one lump sum, without interest, on the first business day following the end of the six (6) month period or following the date of the Executive’s death, whichever is earlier, and the balance of the 409A Payments, if any, shall be paid in accordance with the applicable payment schedule provided in Section 5. (b) With respect to reimbursements (whether such reimbursements are for business expenses or, to the extent permitted under the Company’s policies, other expenses) and/or in-kind benefits, in each case, that constitute deferred compensation subject to Code Section 409A (as determined by the Company in its sole discretion), each of the following shall apply: (1) no reimbursement of expenses incurred by Executive during any taxable year shall be made after the last day of the following taxable year of Executive, (2) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a taxable year of Executive shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, to Executive in any other taxable year, and (3) the right to reimbursement of such expenses or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with (a) If any payment, compensation or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or other benefit provided to the Executive) until the date that Executive in connection with his employment termination is the first business day of the seventh month following the date of termination (determined, in whole or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinpart, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a constitute “separation from servicenonqualified deferred compensation” within the meaning of Section 409A of the Code and(“Section 409A”) and the Executive is a specified employee as defined in Section 409A(2)(B)(i), for purposes no part of such payments shall be paid before the day that is six (6) months plus one (1) day after the termination date (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to the Executive during the period between the termination date and the New Payment Date shall be paid to the Executive in a lump sum on such provision New Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. (b) 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 to the Executive 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 Executive 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; provided, however, that any resulting renegotiated terms shall provide to the Executive the after-tax economic equivalent of what otherwise has been provided to the Executive pursuant to the terms of this Agreement, references and provided further, that any deferral of payments or other benefits shall be only for such time period as may be required to comply with Section 409A. (c) For purposes of the Agreement, a “termination,” “termination of employment” or like terms shall mean employment will be determined consistent with the rules relating to “separation from service. Each payment made ” under this Agreement shall be treated as a separate payment Section 409A and the right to a series regulations thereunder. (d) The parties agree that all of installment the payments set forth in Section 5(c) qualify for the short term deferral exemption under this Agreement is to be treated as a right to a series of separate payments.Section 409A.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and Code, as amended (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with the Company, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the BankUnited Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with the Company for purposes of any provision of this Agreement providing for the and no payment of amounts or benefits upon or following a termination of employment unless such termination is also shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitute deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. the Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 12(g); provided that neither the Company nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent (a) Notwithstanding the provisions of sections 5(d), 7, 8, 9 and 11, if the parties Officer is that payments and benefits under this Agreement comply with or are exempt from a specified employee within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), as determined by the Board in accordance with the election made by the Holding Company for determining specified employees, any amounts payable under sections 5(d), 7, 8, 9 or 11 (and this Agreement shall any other payments to which the Officer may be interpreted entitled) which constitute “deferred compensation” within the meaning of Section 409A and construed in a manner that establishes an exemption from which are otherwise scheduled to be paid during the first six months following the Officer’s termination of employment (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement other than any payments that are undefined or ambiguous shall be interpreted in a manner that complies with Code permitted under Section 409A to be paid within six months following termination of employment of a specified employee) shall be suspended until the extent necessary to comply with Code Section 409A. Notwithstanding anything herein six-month anniversary of the Officer’s termination of employment (or the Officer’s death if sooner), at which time all payments that were suspended shall be paid to the contraryOfficer (or his estate) in a lump sum, together with interest on each suspended payment at the prime rate (ias reported in the Wall Street Journal) if, on from the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order suspension to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination payment. (b) Payment or reimbursement of each of the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such business expense payments or other benefits reimbursements called for by this Agreement with respect to any calendar year shall be deferred if deferral will make such not affect the amount eligible for payment or reimbursement in any other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409Acalendar year, then and such payments shall and reimbursements may not be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a exchanged for cash or another benefit. (c) 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 upon or following a termination of employment unless such termination is also a “separation from service” (within the meaning of Code Section 409A of the Code and, for 409A). (d) For purposes of any such provision of this AgreementSection 409A, references to a “termination,” “termination of employment” each payment under sections 5(d), 7, 8, 9 or like terms shall mean separation from service. Each payment made under this Agreement shall 11 (and each other severance plan payment) will be treated as a separate payment payment. (e) It is intended that this Agreement comply with the provisions of Section 409A and the right regulations and guidance of general applicability issued thereunder so as to a series not subject the Officer to the payment of installment payments additional interest and taxes under Section 409A, and in furtherance of this intent, this Agreement is to shall be treated as interpreted, operated and administered in a right to a series of separate paymentsmanner consistent with these intentions.

Compliance with Code Section 409A. The intent This Agreement is intended to comply with, or be exempt from, the requirements of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code Code, and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies consistently with Code Section 409A to the extent necessary to comply with Code Section 409A. such intent. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with the Company, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the first business day to occur following the date that is six (6) months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A409A of the Code), which initial payment will include the payments and benefits that would have been paid to Executive during such six (6) month period but for the delay required by Section 409A of the Code; and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 11(g) in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section 11(g) without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 11(g); provided, that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A409A of the Code, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean separation from service. Each For purposes of Section 409A of the Code, Executive’s right to receive any installment 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 receive a series of separate and distinct payments. Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a “deferral of compensation” within the meaning of Section 409A of the Code, (A) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year; (B) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred; and (C) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement intended to comply with or are exempt from the requirements of Section 409A of the Code and and, as a result, this Agreement shall be construed, interpreted and construed operated in a manner that establishes an exemption from (or compliance with) will ensure such compliance. Without limiting the requirements scope of Code Section 409A. Any terms the preceding provisions of this Agreement that are undefined or ambiguous Section 23, the following provisions shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, apply: (i) if, on All references in this Agreement to the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of Executive’s employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the with Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), shall mean and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred deemed to occur if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, and when a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also that constitutes a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder has occurred. (ii) To the extent that Executive is a specified employee, as defined in Treas. Reg. §1.409A-1(i), and any stock of the Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code and, for purposes of any such provision (including payments and benefits subject to other provisions of this AgreementSection 23) shall be made under this Agreement on account of the Executive’s separation from service with the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code, references before the date that is the first day of the month that occurs six months after the date of Executive’s separation from service (or, if earlier, the date of death of Executive or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder if and to the extent such payment or benefit constitutes, pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), separation pay payable or to be provided only upon an involuntary separation from service, does not exceed two times the lesser of the Executive’s annual Salary at the rate then in effect or the maximum amount that may be taken into account under a “termination,” “termination qualified plan pursuant to Section 401(a)(17) of employment” or like terms shall mean the Code in the year in which the Executive has a separation from service, and is paid no later than last day of the second year following the year in which occurs the involuntary separation from service. Each payment made In addition, any noncash benefit to be provided under this Agreement that is described in, and subject to the delay of, the first sentence of this Section 23(ii), such benefit shall be made available to the Executive during that six month period, but only upon the full and timely payment in cash by Executive to the Company of the fair and arms’ length value of such benefit, which payments shall be reimbursed by the Company to the Executive after the delay described above and otherwise in accordance with Section 23(iii). (iii) To the extent that any amount or benefit hereunder is includable in gross income for federal income tax purposes and constitutes or is treated hereunder as a reimbursement received or to be received by Executive, such reimbursement shall be administered consistent with the following additional requirements as set forth in Treas. Reg. §1.409A-3(i)(1)(iv): (1) Executive’s eligibility for or receipt of benefits or reimbursements in one year will not affect Executive’s eligibility for or the amount of benefits or reimbursements in any other year, (2) any reimbursement of eligible expenses will be made on or before the last day of the year following the year in which the expense was incurred, (3) Executive’s right to benefits or reimbursement is not subject to liquidation or exchange for another benefit, and (4) the right to reimbursement of expenses incurred or to the provision of benefits in kind shall terminate ten (10) years from the Executive’s termination of employment. (iv) To the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder such offset may occur only if it would not result in an impermissible acceleration under Section 409A of the Code. (v) To the extent that any benefit in kind or coverages to be provided under this Agreement either cannot be provided without contravening the requirements of applicable law because the Executive has ceased to be employed by the Company, or would subject the Executive to additional income taxes under Section 409A of Code, the Company shall not provide such benefit in kind or coverage, but shall in lieu thereof pay an amount equal to the Company’s cost (determined as of the date on which Executive’s coverage terminated) of providing such benefit for the period such benefit or coverage was otherwise required under this Agreement, and such amount shall be payable in equal, periodic installments at the same regular intervals at which Executive’s Salary would be payable under the normal Company’s payroll practices and procedures commencing with the first payroll date on or immediately after the Executive’s benefit in kind or coverage terminates. (vi) Each right to benefits in kind over a period of time that would be treated as a separate payment and the right to a series of installment payments, and/or each right to payments under this Agreement is to in respect of such benefits and Section 23(v), shall at all times be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of the parties It is intended that all terms and payments and benefits under this Agreement comply with (or are be exempt from from) and be administered in accordance with Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (“Section 409A”) so as not to subject you to payment of interest or compliance with) the requirements of Code any additional tax under Section 409A. Any Accordingly, notwithstanding any other provision of this Agreement: (i) All terms of this the Agreement that are undefined or ambiguous shall be interpreted in a manner that complies is consistent with Code Section 409A to the extent if necessary to comply with Code or be exempt from Section 409A. Notwithstanding anything herein to the contraryFor example, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the no payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits may be made due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such the termination is also of employment satisfies the requirements of a “separation from service” within the meaning of under Section 409A of the Code and, for purposes and related regulations. If payment or provision of any such provision of this Agreement, references to a “termination,” “termination of employment” amount or like terms shall mean separation from service. Each payment made benefit under this Agreement at the time specified would subject such amount or benefit to any additional tax under Section 409A, the payment or provision of such amount or benefit will be postponed, if possible, to the earliest commencement date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. The parties agree, to the extent reasonably possible, to amend this Agreement in order to comply with Section 409A and avoid the imposition of any interest or additional tax under Section 409A; provided, however, that neither party shall be treated as a separate payment and required to amend this Agreement if such amendment would change the total amount payable by the Company pursuant to this Agreement. The right to a series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments. (ii) To the extent that (A) the you are determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, (B) any amounts payable under this Agreement represent amounts that are subject to Section 409A, and (C) such amounts are payable on the your “separation from service,” within the meaning of Section 409A, then such amounts will not be payable to you before the date that is six months and one day after your separation from service. Payments under this section to which the you would otherwise be entitled during the six-month suspension period following your separation from service will be accumulated and paid on the first day permitted under this section. (iii) All reimbursements under this Agreement will be made as soon as practicable following submission of a reimbursement request, but no later than the end of the year following the year during which the underlying expense was incurred or paid. The amount of expenses eligible for reimbursement, or in-kind benefits provided, during one taxable year will not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. The right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (iv) The Company makes no representation or warranty to you with regard to the application of Section 409A to any amounts payable pursuant to this Agreement and shall not have any liability to you for any interest, additional tax, or other adverse consequence arising under Section 409A with respect to this Agreement.

Compliance with Code Section 409A. The intent of the parties (a) It is intended that payments and benefits under this Agreement shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes Code, or an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code to Section 409A to of the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to Code. Without limiting the contrary, (i) if, on generality of the date of terminationforegoing, the Executive is a parties intend that all payments made hereunder shall qualify for either the “specified employeeshort-term deferral” as defined in exception or the separation pay exception or another exception under Section 409A of the Code, and this Agreement shall be interpreted, to the deferral of the commencement of any maximum extent possible, consistent with such intent. All payments or benefits otherwise payable hereunder as to be made upon a result of such termination of employment is under this Agreement may only be made upon a “separation from service” under Section 409A of the Code to the extent necessary in order to prevent avoid the imposition of penalty taxes on the Employee pursuant to Section 409A of the Code. In no event may the Employee, directly or indirectly, designate the calendar year of any accelerated payment under this Agreement that is considered deferred compensation under Section 409A of the Code, and to the extent required by Section 409A of the Code, any payment that may be paid in more than one taxable year shall be paid in the later taxable year. (b) Notwithstanding anything to the contrary in this Agreement, all reimbursements and in-kind benefits provided under this Agreement that are subject to Section 409A of the Code shall be made in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Employee’s lifetime (or additional tax under during a shorter period of time specified in this Agreement); (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred; and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any other provision of this Agreement to the contrary, if the Employee is considered a “specified employee” for purposes of Section 409A of the Code Section 409A, then (as determined in accordance with the methodology established by the Company will defer and its Affiliates as in effect on the commencement Termination Date), any payment that constitutes nonqualified deferred compensation within the meaning of Section 409A of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided Code that is otherwise due to the Executive) until Employee under this Agreement during the date that is six-month period immediately following the Employee’s separation from service on account of the Employee’s separation from service shall instead be paid on the first business day of the seventh month following his separation from service (the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii“Delayed Payment Date”) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid with interest calculated at the time specified under this Section without any interest thereon. Notwithstanding anything to short-term Applicable Federal Rate as in effect for the contrary hereinmonth in which the Termination Date occurs, to the extent required by Code necessary to prevent the imposition of tax penalties on the Employee under Section 409A409A of the Code. If the Employee dies prior to the Delayed Payment Date, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for then the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning and entitlements delayed on account of Section 409A of the Code and, for shall be paid to the personal representative of his estate on the first to occur of the Delayed Payment Date or 30 calendar days after the date of the Employee’s death. (d) For purposes of any such provision applying the provisions of Code Section 409A to this Agreement, references each separately identified amount to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made which the Employee is entitled under this Agreement shall be treated as a separate payment and payment. In addition, to the right to a extent permissible under Code Section 409A, any series of installment payments under this Agreement is to shall be treated as a right to a series of separate 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 or the Partnership, as the case may be.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits Any payment under this Agreement comply with or are exempt from Section 409A of 7 is subject to the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms provisions of this Agreement that are undefined Section 7(h) (except for a payment pursuant to Disability or ambiguous shall be interpreted in a manner that complies with Code death under Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, 7(d) or (i) if, on the date of termination, the e)). If Executive is a “specified employeeSpecified Employee” as defined of the Company for purposes of Code Section 409A at the time of a payment event in Section 409A of the Code, 7(b) and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under if no exception from Code Section 409A409A applies in whole or in part, then the severance or other payments will be made to Executive by the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is on the first business day of the seventh month following the date of termination the Executive’s Separation from Service (or the earliest date “409A Payment Date”). Should this Section 7(h) result in a delay of payments to Executive, the Company will begin to make the payments as is permitted under Code described in this Section 409A)7, and (ii) if provided that any other payments of money or other benefits due to the Executive hereunder could cause amounts that would have been payable earlier but for the application of an accelerated this Section 7(h), will be paid in lump-sum on the 409A Payment Date along with accrued interest at the rate of interest announced by the Company’s primary bank from time to time as its prime rate from the date that payments would otherwise have been made under this Agreement. The balance of the severance payments will be payable in accordance with regular payroll timing and the COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in Code Section 409A(a)(2)(B)(i), or additional tax under any successor provision and the issued treasury regulations and rulings. “Separation from Service” or “Termination of Employment” means, with respect to any payment that is subject to Code Section 409A, such payments either (a) termination of Executive’s employment with Company and all affiliates, or (b) a permanent reduction in the level of bona fide services Executive provides to Company and all affiliates to an amount that is 20% or less of the average level of bona fide services Executive provided to Company in the immediately preceding 36 months, with the level of bona fide service calculated in accordance with Treasury Regulations Section 1.409A-1(h)(1)(ii). Solely for purposes of determining whether Executive has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other benefits shall bona fide leave of absence (if the period of such leave does not exceed six months, or if longer, so long as Executive’s right to reemployment with Company or an affiliate is provided either by statute or contract). If Executive’s period of leave exceeds six months and Executive’s right to reemployment is not provided either by statute or by contract, the employment relationship is deemed to terminate on the first day immediately following the expiration of such six-month period. Whether a termination of employment has occurred will be deferred if deferral will make such payment or other benefits compliant under determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to Code Section 409A. In If the event that payments under this Agreement are deferred pursuant payment is not subject to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a term termination of employment shall not will be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsgiven its ordinary meaning.

Compliance with Code Section 409A. The intent of the parties (a) It is intended that payments and benefits any amounts payable under this Agreement and the Company’s and Employee’s exercise of authority or discretion hereunder shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall the treasury regulations relating thereto so as not to subject Employee to the payment of the additional tax, interest and any tax penalty which may be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of imposed under Code Section 409A. Any If Employee or the Company believes, at any time, that the provision of any such benefits or rights do not so comply, he or it shall promptly advise the other party and shall negotiate reasonably and in good faith to amend the terms of this Agreement such arrangements such that are undefined or ambiguous shall be interpreted in a manner that it complies with Code Section 409A to of the extent necessary to comply Code (with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, most limited possible economic effect on Employee and on the date Company). Reference to Section 409A of termination, the Executive Code is a “specified employee” as defined in to Section 409A of the Code, and . (b) To the deferral extent that any right to reimbursement of the commencement of any payments expenses or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments benefit in-kind under this Agreement are constitutes “nonqualified deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from servicecompensation” (within the meaning of Section 409A of the Code andCode), for purposes of (i) any such provision expense reimbursement shall be made by the Company no later than the last day of this Agreementthe taxable year following the taxable year in which such expense was incurred by Employee, references (ii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) the amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year; provided, that the foregoing clause 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 “termination,” “termination limit related to the period the arrangement is in effect. The Company shall not be responsible for any taxes, penalties or interest imposed under Section 409A of employment” or like terms shall mean separation from service. the Code. (c) Each payment made under pursuant to the provisions of this Agreement shall be treated regarded as a separate payment and the right to not one of a series of installment payments under this Agreement is to be treated as a right to a series for purposes of separate paymentsSection 409A of the Code.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under Notwithstanding anything in this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif the Employee is subject to US Federal income tax on any part of the payment of the PSUs and the Award is subject to Section 409A, on then the date PSUs shall be subject to the following provisions of termination, this Section 9. If the Executive Employee is a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement any issuance or payment in respect of the payment PSUs under Section 8 of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date this Agreement above that is on account of the Employee’s separation from service and is scheduled to be paid within six months after such separation from service shall accrue without interest and shall be paid as soon as reasonably practicable after the first business day of the seventh month following beginning after the date of termination (or the earliest date Employee’s separation from service or, if earlier, as is permitted under Code soon as reasonably practicable following the Employee’s death. During such delayed distribution period, the Employee shall continue to be credited with cash amounts equal to dividends on Common Stock for the applicable Award pursuant to Section 409A)4 of this Agreement, and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits amounts shall accrue without interest and shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. paid in a lump sum at the time specified in the preceding sentence. In the event of a “Change in Control” under section 6(b) of the Plan that payments under this Agreement are deferred pursuant to this Section is not also a “change in order to prevent any accelerated tax control event” within the meaning of Treas. Reg. §1.409A-3(i)(5)(i), the PSUs shall vest as set forth in section 6(a) of the Plan, but shall not be paid upon such Change in Control or additional tax under Code Section 409Atermination of employment as provided by section 6(a) of the Plan, then such payments and shall instead be paid at the time specified under the PSUs would otherwise be settled at the end of the applicable performance period in accordance with Section 8 of this Section without any interest thereonAgreement. Notwithstanding anything References to the contrary herein, to the extent required by Code Section 409A, a termination of employment and separation from service shall not be deemed interpreted to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following mean a termination of employment unless such termination is also a “separation from service” , within the meaning of Section 409A 409A, with the Company and all of the Code and, for its Affiliates treated as a single employer under Section 409A. This Agreement shall be construed in a manner consistent with Section 409A. For purposes of any such provision Section 409A, the payment of this Agreement, references to a “termination,” “termination dividend equivalents under Section 4 of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated construed as a separate payment earnings and the right to a series time and form of installment payments under this Agreement is to payment of such dividend equivalents shall be treated as a right to a series separately from the time and form of separate paymentspayment of the underlying PSUs.

Compliance with Code Section 409A. The intent (a) Notwithstanding the provisions of sections 5(d), 7, 8 and 9, if the parties Officer is that payments and benefits under this Agreement comply with or are exempt from a specified employee within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), as determined by the Board in accordance with the election made by the Bank for determining specified employees, any amounts payable under sections 5(d), 7, 8 or 9 (and this Agreement shall any other payments to which the Officer may be interpreted entitled) which constitute “deferred compensation” within the meaning of Section 409A and construed in a manner that establishes an exemption from which are otherwise scheduled to be paid during the first six months following the Officer’s termination of employment (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement other than any payments that are undefined or ambiguous shall be interpreted in a manner that complies with Code permitted under Section 409A to be paid within six months following termination of employment of a specified employee) shall be suspended until the extent necessary to comply with Code Section 409A. Notwithstanding anything herein six-month anniversary of the Officer’s termination of employment (or the Officer’s death if sooner), at which time all payments that were suspended shall be paid to the contraryOfficer (or his estate) in a lump sum, together with interest on each suspended payment at the prime rate (ias reported in the Wall Street Journal) if, on from the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order suspension to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination payment. (b) Payment or reimbursement of each of the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such business expense payments or other benefits reimbursements called for by this Agreement with respect to any calendar year shall be deferred if deferral will make such not affect the amount eligible for payment or reimbursement in any other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409Acalendar year, then and such payments shall and reimbursements may not be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a exchanged for cash or another benefit. (c) 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 upon or following a termination of employment unless such termination is also a “separation from service” (within the meaning of Code Section 409A of the Code and, for 409A). (d) For purposes of any such provision of this AgreementSection 409A, references to a “termination,” “termination of employment” each payment under sections 5(d), 7, 8 or like terms shall mean separation from service. Each payment made under this Agreement shall 9 (and each other severance plan payment) will be treated as a separate payment payment. (e) It is intended that this Agreement comply with the provisions of Section 409A and the right regulations and guidance of general applicability issued thereunder so as to a series not subject the Officer to the payment of installment payments additional interest and taxes under Section 409A, and in furtherance of this intent, this Agreement is to shall be treated as interpreted, operated and administered in a right to a series of separate paymentsmanner consistent with these intentions.

Compliance with Code Section 409A. The intent of (i) To the parties is that payments and benefits under extent this Agreement comply with or are exempt from is subject to Section 409A of the Code (“Section 409A”), the Parties intend all payments under this Agreement to comply with the requirements of Section 409A, and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A shall, to the extent necessary practical, be operated and administered to comply with Code effectuate such intent. In furtherance thereof, if payment or provision of any amount or benefit hereunder at the time specified in this Agreement would subject such amount or benefit to any additional tax under Section 409A. Notwithstanding anything herein 409A, the payment or provision of such amount or benefit shall be postponed to the contraryearliest commencement date on which the payment or the provision of such amount or benefit could be made without incurring such additional tax (including paying any severance that is delayed in a lump sum upon the earliest possible payment date which is consistent with Section 409A). In addition, to the extent that any regulations or guidance issued under Section 409A (after application of the previous provision of this Section 6(d)) would subject Executive to the payment of interest or any additional tax under Section 409A, the Parties agree, to the extent reasonably possible, to amend this Agreement in order to avoid the imposition of any such interest or additional tax under Section 409A. (ii) With respect to any payment under this Agreement constituting nonqualified deferred compensation subject to Section 409A, (iA) ifall expenses or other reimbursements provided herein shall be payable in accordance with the Company’s policies in effect from time to time, but in any event 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 Executive; (B) no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year; and (C) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit. (iii) If Executive is deemed on the date of termination, the Executive is termination to be a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax that term under Code Section 409A, then with regard to any payment or the Company will defer the commencement of the payment provision of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments benefit under this Agreement are that is considered nonqualified deferred pursuant to this compensation under Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination 409A payable on account of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service,” within such payment or benefit shall be made or provided on the meaning first business day following the earlier of Section 409A (A) the expiration of the Code and, for purposes six (6)-month period measured from the date of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service” of Executive, and (B) the date of Executive’s death (the “Delay Period”). Each payment made Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 6(d) (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 Executive in a lump sum (without interest) on the first business day following the Delay Period, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment and the dates specified for them herein. (iv) Executive’s right to a series of receive any installment payments under this Agreement is to payable hereunder shall be treated as a right to receive a series of separate payments.payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment for purposes of Section 409A.

Compliance with Code Section 409A. (i) The intent of the parties is that payments and benefits under this Agreement comply with or are be exempt from Code Section 409A of and the Code regulations and guidance issued thereunder (“Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause Executive to incur any additional tax or interest under Section 409A, the Company shall, after consulting with and construed receiving the approval of Executive, reform such provision in a manner that establishes an exemption from (or compliance with) intended to avoid the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the incurrence by Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments additional tax or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and interest. (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a 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 that are considered nonqualified deferred compensation under Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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.” The determination of whether and when a separation from service has occurred for proposes of this Agreement shall be made in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulations. (iii) Any provision of this Agreement to the contrary notwithstanding, if at the time of Executive’s separation from service, the Company determines that Executive is a “specified employee,” within the meaning of Section 409A, then to the extent any payment or benefit that Executive becomes entitled to under this Agreement on account of such separation from service would be considered nonqualified deferred compensation under Section 409A, such payment or benefit shall be paid or provided at the date which is the earlier of (x) six months and one day after such separation from service and (y) the date of Executive’s death (the “Delay Period”). Each payment made Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 9(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or provided to Executive in a lump-sum, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment dates specified herein. (iv) Any reimbursements and the right to a series of installment payments in-kind benefits provided under this Agreement that constitute deferred compensation within the meaning of Section 409A shall be made or provided in accordance with the requirements of Section 409A, including that (A) in no event shall any fees, expenses or other amounts eligible to be reimbursed by the Company under this Agreement be paid later than the last day of the calendar year that follows the calendar year in which the applicable fees, expenses or other amounts were incurred; (B) the amount of expenses eligible for reimbursement, or in kind benefits that the Company is obligated to pay or provide, in any given calendar year shall not affect the expenses that the Company is obligated to reimburse, or the in-kind benefits that the Company is obligated to pay or provide, in any other calendar year, provided that the foregoing clause (B) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect; and (C) Executive’s right to have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit. (v) For purposes of Section 409A, Executive’s right to receive any installment payments 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 (for example, “payment shall be made within 30 days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent such payment is subject to Section 409A.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments intended, and benefits under this Agreement shall be construed and interpreted, to comply with or are exempt from Section 409A of the Internal Revenue Code and this Agreement of 1986, as amended (the “Code”) and, if necessary, any provision shall be interpreted held null and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A void to the extent necessary such provision (or part thereof) fails to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date For purposes of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the each payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day compensation under this Agreement shall be treated as a separate payment of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application compensation. Any amounts payable solely on account of an accelerated or additional tax under involuntary termination shall be excludible from the requirements of Code Section 409A, such payments either as separation pay or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything as short-term deferrals to the contrary herein, maximum possible extent. Any reference to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a Employee’s “termination,” “termination of employment” or like terms “termination of this Agreement” shall mean the Employee’s “separation from service. Each payment made under this Agreement shall ” as defined in Code Section 409A from the Company and all entities with whom the Company would be treated as a separate payment single employer for purposes of Code Section 409A. Nothing herein shall be construed as a guarantee of any particular tax treatment to Employee and the right Company shall have no liability to a series the Employee with respect to any penalties that might be imposed on the Employee by Code Section 409A for any failure of installment payments under this Agreement or otherwise. In the event that the Employee is a “specified employee” (as described in Code Section 409A), and any payment or benefit payable pursuant to this Agreement constitutes deferred compensation under Code Section 409A, then no such payment or benefit shall be treated made before the date that is six months after the Employee’s “separation from service” (as described in Code Section 409A) (or, if earlier, the date of the Employee’s death). Any payment or benefit delayed by reason of the prior sentence shall be paid out or provided in a right single lump sum at the end of such required delay period in order to a series of separate paymentscatch up to the original payment schedule.

Compliance with Code Section 409A. The intent Any provision of this Agreement to the contrary notwithstanding, all compensation payable pursuant to this Agreement that is determined by Intervoice in its sole judgment to be subject to Section 409A of the parties is Code shall be paid in a manner that payments and benefits under this Agreement comply with or are exempt from Intervoice in its sole judgment determines meets the requirements of Section 409A of the Code and this Agreement shall be interpreted and construed in a manner any related rules, regulations or other guidance. If Intervoice determines that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” (as defined by Intervoice in accordance with Section 409A of the Code and the regulations and other guidance thereunder) on the date of the Executive’s “separation from service” (as defined by Intervoice in accordance with Section 409A of the Code and the regulations and other guidance thereunder), then, notwithstanding any provision of this Agreement to the contrary, no payment of compensation under this Agreement that is subject to Section 409A of the Code shall be made to the Executive during the period lasting six months from the date of the Executive’s separation from service unless Intervoice determines that there is no reasonable basis for believing that making such payment would cause the Executive to suffer adverse tax consequences pursuant to Section 409A of the Code and the regulations and other guidance thereunder. If any payment to the Executive is delayed pursuant to the foregoing sentence, such amount instead shall be paid on the earliest date that payment can be made to the Executive under Section 409A of the Code and the regulations and other guidance thereunder. For purposes of Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such each payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. Each payment made benefit due under this Agreement shall be treated as considered a separate payment payment, and the right Executive’s entitlement to a series of installment payments or benefits under this Agreement is to be treated as a right an entitlement to a series of separate payments.

Compliance with Code Section 409A. The intent (a) It is the intention of the parties is Parties that payments and benefits the compensation arrangements under this Agreement comply with or are be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and this Agreement shall be interpreted and construed in a manner that establishes an exemption from to give effect to such intention. Unless otherwise expressly provided, any payment of compensation by Company to the Executive, whether pursuant to this Agreement or otherwise, shall be made no later than the 15th day of the third month (i.e. 2½ months) after the end of the later of the calendar year or compliance withthe Company’s fiscal year in which the Executive’s right to such payment vests (i.e., is not subject to a substantial risk of forfeiture for purposes of Code Section 409A). Such amounts shall not be subject to the requirements of subsection (b) below applicable to “nonqualified deferred compensation.” (b) All payments of “nonqualified deferred compensation” (within the meaning of Code Section 409A – “Section 409A payments”) are intended to comply with the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous 409A, and shall be interpreted in a manner that complies with Code accordance therewith. Neither party individually or in combination may accelerate, offset or assign any Section 409A to the extent necessary to comply payments, except in compliance with Code Section 409A. Notwithstanding anything herein No amount shall be paid prior to the contrary, (i) if, earliest date on the date of termination, the Executive which it is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order permitted to prevent any accelerated or additional tax be paid under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided 409A and Executive shall have no discretion with respect to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning timing of Section 409A of the Code and, for purposes payments except as permitted under Section 409A. Each payment and each installment of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made severance payments provided for under this Agreement shall be treated as a separate payment for purposes of determining the application of Code Section 409A. The limitations under this subsection (b) shall not apply to that portion of any amounts payable upon termination of employment which shall qualify as “involuntary severance” under Section 409A. In the event that the Executive is determined to be a “specified employee” (as defined and determined under Code Section 409A) of Company at a time when its stock is deemed to be publicly traded on an established securities market, payments determined to be “nonqualified deferred compensation” payable by reason of separation from service shall be paid no earlier than (i) the first day of the seventh (7th) calendar month commencing after such termination of employment, or (ii) the Executive’s death, consistent with and to the extent necessary to meet the requirements Code Section 409A. Any payment delayed by reason of the prior sentence shall be paid in a single lump sum, without interest, on the earliest date permitted under Code Section 409A in order to catch up to the original payment schedule. Any payments to which Code Section 409A applies which are subject to execution of a waiver and release that may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the release revocation period ends as necessary to comply with Code Section 409A. (c) Notwithstanding any provision of this Agreement to the contrary, (i) in the event that any amounts or benefits payable hereunder would otherwise violate Code Section 409A, Executive shall have no legally enforceable right to a series of installment payments under receive such amounts or benefits and (ii) in the event that the Company determines that any amounts payable hereunder would violate Code Section 409A, the Company may, but is not be obligated to, adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Company determines in its discretion are necessary or appropriate to comply with the requirements of Code Section 409A. Notwithstanding the foregoing, the Executive shall be responsible for the payment of all taxes applicable to payments or benefits received from the Company. It is the intent of the Company that the provisions of this Agreement and all other plans and programs sponsored by the Company be interpreted to comply in all respects with Code Section 409A, however, the Company shall have no liability to the Executive, or any successor or beneficiary thereof, in the event taxes, penalties or excise taxes may ultimately be determined to be treated applicable to any payment or benefit received by the Executive or any successor or beneficiary thereof, nor for reporting in good faith any payment of benefit as a right subject to a series of separate payments.Code Section 409A.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits (a) This Agreement shall be interpreted to avoid any penalty sanctions under this Agreement comply with or are exempt from Section 409A of the Code and (“Section 409A”). If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of Section 409A, (i) upon a termination of employment under this Agreement, Executive shall have no ongoing obligations to the Company, the OP or the Subsidiaries that would prevent Executive from having a “separation from service” upon such termination within the meaning of such term under Section 409A; (ii) each payment made under this Agreement shall be interpreted treated as a separate payment; and construed (iii) 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 Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in a manner that establishes an exemption from (or compliance with) accordance with the requirements of Code Section 409A. Any terms 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement); (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred; and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any provision in this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on at the date time of terminationExecutive’s separation from service with the Company, the Company has securities which are publicly traded on an established securities market, Executive is a “specified employee” (as defined in Section 409A of the Code, 409A) and the deferral of it is necessary to postpone the commencement of any severance payments or benefits otherwise payable hereunder pursuant to this Agreement as a result of such termination of employment is necessary in order separation from service to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise exempt from Section 409A until the first payroll date that occurs after the date that is six (6) months following Executive’s separation from service with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted determined under Code Section 409A), and (ii) if . If any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred postponed pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A6.1(c), then such payments postponed amounts will be paid in a lump sum to Executive on the first payroll date that occurs after the date that is six (6) months following Executive’s separation from service with the Company. If Executive dies during the postponement period prior to the payment of any postponed amount, such amount shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to personal representative of Executive’s estate within sixty (60) days after the extent required by Code Section 409A, a termination date of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsExecutive’s death.

Compliance with Code Section 409A. The intent To the extent applicable, it is intended that the payment of the parties is that payments and benefits under described in this Agreement comply with or are exempt from Section 409A of the Code Internal Revenue of 1986, as amended (the "Code"), and this all guidance or regulations thereunder ("Section 409A"), including compliance with all applicable exemptions from Section 409A (e.g., the short-term deferral exception and the "two times" pay exemption applicable to severance payments). This Agreement shall will at all times be interpreted and construed in a manner that establishes an exemption from (or to comply with Section 409A and should any provision be found not in compliance with) with Section 409A, the requirements of Code Section 409A. Any Executive hereby agrees to any changes to the terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies deemed necessary and required by legal counsel to bring the Agreement into compliance with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of including any such payments applicable exemptions. The Executive irrevocably waives any objections he or benefits hereunder (without she may have to any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date further changes that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall may be deferred if deferral will make such payment or other benefits compliant under Code required by Section 409A. In the no event will any payment that payments under this Agreement are deferred becomes payable pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination that is also a “separation from service” considered "deferred compensation" within the meaning of Section 409A 409A, if any, and does not satisfy any of the Code andapplicable exemptions under Section 409A, for be accelerated or delayed in violation of Section 409A. For purposes of any such provision of this Agreement, references to the benefits described in Section 1 of this Agreement shall not be paid or commence until the Executive incurs a “termination,” “termination of employment” or like terms shall mean "separation from service" as defined in Section 409A. PLEASE READ THIS AGREEMENT CAREFULLY. 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 paymentsIT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. YOU AGREE THAT YOU RECEIVED VALUABLE CONSIDERATION IN EXCHANGE FOR ENTERING INTO THIS AGREEMENT AND THAT THE EMPLOYER ADVISED YOU IN WRITING TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. YOU PROMISE THAT NO REPRESENTATIONS OR INDUCEMENTS HAVE BEEN MADE TO YOU EXCEPT AS SET FORTH HEREIN, AND THAT YOU HAVE SIGNED THE SAME KNOWINGLY AND VOLUNTARILY.

Compliance with Code Section 409A. The intent (a) Notwithstanding anything in this Agreement to the contrary, the receipt of the parties is that payments and any benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed subject to have occurred for purposes satisfaction of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also condition precedent that Executive undergo a “separation from service” within the meaning of Treas. Reg. § 1.409A-1(h) or any successor thereto. In addition, if Executive is deemed to be a “specified employee” within the meaning of that term under Code Section 409A 409A(a)(2)(B), then with regard to any payment or the provisions of any benefit that is required to be delayed pursuant to Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the Code and, for purposes six (6) month period measured from the date of any such provision of this Agreement, references to a Executive’s “termination,” “termination of employment” or like terms shall mean separation from service” (as such term is defined in Treas. Each payment made Reg. § 1.409A-1(h)), or (ii) the date of Executive’s death (the “Delay Period”). Within ten (10) days following the expiration of the Delay Period, all payments and benefits delayed pursuant to this section (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 Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be treated paid or provided in accordance with the normal payment dates specified for them herein. (b) Except as a separate payment otherwise expressly provided herein, to the extent any expense reimbursement or other in-kind benefit is determined to be subject to Code Section 409A, the amount of any such expenses eligible for reimbursement or in-kind benefits in one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits in any other taxable year (except under any lifetime limit applicable to expenses for medical care), in no event shall any expenses be reimbursed or in-kind benefits be provided after the last day of the calendar year following the calendar year in which Executive incurred such expenses or received such benefits, and the in no event shall any right to a series reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. (c) Any payments made pursuant to Sections 5 and 6, to the extent of installment payments under this Agreement is made from the date of termination through March 15th of the calendar year following such date, are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) and thus payable pursuant to the “short-term deferral” rule set forth in Treas. Reg. §1.409A-1(b)(4); to the extent such payments are made following said March 15th, they are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) made upon an involuntary termination from service and payable pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), to the maximum extent permitted by said provision. Notwithstanding the foregoing, if the Employer determines that any other payments hereunder fail to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), the payment of such benefit shall be treated as a right delayed to a series the minimum extent necessary so that such payments are not subject to the provisions of separate paymentsCode Section 409A(a)(1).

Compliance with Code Section 409A. The intent (a) Notwithstanding anything in this Agreement to the contrary, the receipt of the parties is that payments and any benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed subject to have occurred for purposes satisfaction of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also condition precedent that Executive undergo a “separation from service” within the meaning of Treas. Reg. § 1.409A-1(h) or any successor thereto. In addition, if Executive is deemed to be a “specified employee” within the meaning of that term under Code Section 409A 409A(a)(2)(B), then with regard to any payment or the provisions of any benefit that is required to be delayed pursuant to Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the Code and, for purposes six (6) month period measured from the date of any such provision of this Agreement, references to a Executive’s “termination,” “termination of employment” or like terms shall mean separation from service” (as such term is defined in Treas. Each payment made Reg. § 1.409A-1(h)), or (ii) the date of Executive’s death (the “Delay Period”). Within ten (10) days following the expiration of the Delay Period, all payments and benefits delayed pursuant to this section (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 Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be treated paid or provided in accordance with the normal payment dates specified for them herein. To the extent that the foregoing applies to the provision of any ongoing welfare benefits to Executive that would not be required to be delayed if the premiums therefore were paid by Executive, Executive shall pay the full costs of premiums for such welfare benefits during the Delay Period and Luzerne shall pay Executive an amount equal to the amount of such premiums paid by Executive during the Delay Period within ten (10) days after the conclusion of such Delay Period. (b) Except as a separate payment otherwise expressly provided herein, to the extent any expense reimbursement or other in-kind benefit is determined to be subject to Code Section 409A, the amount of any such expenses eligible for reimbursement or in-kind benefits in one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits in any other taxable year (except under any lifetime limit applicable to expenses for medical care), in no event shall any expenses be reimbursed or in-kind benefits be provided after the last day of the calendar year following the calendar year in which Executive incurred such expenses or received such benefits, and the in no event shall any right to a series reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. (c) Any payments made pursuant to Sections 5 and 6, to the extent of installment payments under this Agreement made from the date of termination through March 15th of the calendar year following such date, are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) and thus payable pursuant to the “short-term deferral” rule set forth in Treas. Reg. §1.409A-1(b)(4); to the extent such payments are made following said March 15th, they are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) made upon an involuntary termination from service and payable pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), to the maximum extent permitted by said provision. Notwithstanding the foregoing, if Luzerne determines that any other payments hereunder fail to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), the payment of such benefit shall be delayed to the minimum extent necessary so that such payments are not subject to the provisions of Code Section 409A(a)(1). (d) To the extent it is determined that any benefits described in Section 6(b) are taxable to Executive, they are intended to be treated as a right payable pursuant to a series of separate paymentsTreas. Reg. §1.409A-1(b)(9)(v), to the maximum extent permitted by said provision.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, your termination of employment with the Executive is Company you are a “specified employee” as defined in Section 409A of the Code, Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executiveyou) until the date that is the first business day six months following your Date of the seventh month following the date of termination Termination (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive you hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 14 in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section without 14 (together with interest for any interest thereonadditional deferral period resulting from this Section 14 at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the date of termination). The Company shall consult with you in good faith regarding the implementation of this Section 14. For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless until such termination is also a “separation Separation from serviceService” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean separation Separation from service. 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 paymentsService.

Compliance with Code Section 409A. The intent of the parties is that payments and With respect to reimbursements or in-kind benefits provided under this Agreement or under any other Company Arrangement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement or under any other Company Arrangement, (b) any reimbursement of provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement or of any other Company Arrangement) shall be made not later than December 31st of the year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement or of any other Company Arrangement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that any amounts payable under this Agreement, any Employee Plan or any other Company Arrangement, and any exercise of the Company’s and the Executive’s authority or discretion hereunder, shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall the Treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of imposed under Code Section 409A. Any terms In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Code Section 409A, the Parties agree to amend this Agreement that are undefined or ambiguous shall be interpreted in order to bring this Agreement into compliance with Code Section 409A; and thereafter to interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the deferral U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding anything in this Agreement or elsewhere to the contrary, and unless the Executive otherwise agrees in a signed writing executed in connection with the termination of his employment under this Agreement, the Executive shall have no duties or responsibilities after the Termination Date that are inconsistent with his having had a Separation from Service on the Termination Date. If the Executive agrees, in a signed writing that is executed in connection with the termination of his employment under this Agreement, to undertake duties and responsibilities that will result in his not incurring a Separation from Service on the Termination Date, all references to the Termination Date herein for the purposes of determining the commencement of any severance payments or and benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be constitute deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” compensation within the meaning of Section 409A shall mean the date Executive incurs a Separation from Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with this Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on him under or as a result of Section 409A of the Code and, for purposes of any such provision in connection with payments and benefits made in accordance with the terms of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. 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.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and shall operate so that the payments and benefits set forth herein shall either be exempt from the requirements of Code Section 409A or shall comply with the requirements of such provision; provided, however, that in no event shall the Company be liable to the Consultant for or with respect to any taxes, penalties or interest which may be imposed upon the Consultant pursuant to Code Section 409A. For purposes of this Agreement, the terms "termination of service" and variations thereof shall mean a "separation from service" as defined in Treasury Regulation Section 1.409A-1(h) (i"Separation From Service"). To the extent that any payment under this Agreement constitutes a "deferral of compensation" subject to Code Section 409A (a "409A Payment") ifthat is to be paid upon a Separation From Service, then, (A) in the event that a termination of Consultant’s services does not constitute a Separation From Service, such 409A Payment shall begin at such time as the Consultant has otherwise experienced such a Separation from Service, and the date of such Separation from Service shall be deemed to be the termination date of this Agreement, and (B) if on the date of terminationthe Consultant’s Separation from Service, the Executive Consultant is deemed to be a “"specified employee” " of a public company, as such term is defined in Treasury Regulation Section 1.409A-l(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Consultant until six (6) months and one day after the Consultant’s Separation from Service, and shall be paid without adjustment for the delay in payment. The Consultant hereby acknowledges that it has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Consultant of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A of and applicable state tax law. The Consultant hereby agrees to bear the Code, and the deferral of the commencement entire risk of any payments or benefits otherwise payable hereunder as a result of such termination of employment adverse federal and state tax consequences and penalty taxes in the event any payment pursuant to this Agreement is necessary in order deemed to prevent any accelerated or additional tax under be subject to Code Section 409A, then and that no representations have been made to the Company will defer Consultant relating to the commencement of the payment tax treatment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided payment pursuant to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted this Agreement under Code Section 409A), 409A and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes corresponding provisions of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsapplicable state income tax laws.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and shall operate so that the payments and benefits set forth herein either shall be exempt from the requirements of Code Section 409A or shall comply with the requirements of such provision; provided, however, that in no event shall the Company be liable to the Executive for or with respect to any taxes, penalties or interest which may be imposed upon the Executive pursuant to Code Section 409A. For purposes of this Agreement, the terms “termination,” “termination of employment” and variations thereof shall mean a “separation from service” as defined in Treasury Regulation Section 1.409A-1(h) (i“Separation From Service”). To the extent that any Severance payment constitutes a “deferral of compensation” subject to Code Section 409A (a “409A Payment”), then, (A) ifin the event that a termination of Executive’s employment does not constitute a Separation From Service, such 409A Payment shall begin at such time as the Executive has otherwise experienced such a Separation from Service, and the date of such Separation from Service shall be deemed to be his Termination Date for purposes of Section 4(a) hereof, and (B) if on the date of terminationthe Executive’s Separation from Service, the Executive is a “specified employee” of a public company, as such term is defined in Treasury Regulation Section 1.409A-l(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Executive until the earlier of (i) six (6) months and one day after the Executive’s Separation from Service; or (ii) the date of his death, and shall be paid without adjustment for the delay in payment. The Executive hereby acknowledges that he has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A of and applicable state tax law. The Executive hereby agrees to bear the Code, and the deferral of the commencement entire risk of any payments or benefits otherwise payable hereunder as a result of such termination of employment adverse federal and state tax consequences and penalty taxes in the event any payment pursuant to this Agreement is necessary in order deemed to prevent any accelerated or additional tax under be subject to Code Section 409A, then and that no representations have been made to the Company will defer Executive relating to the commencement of the payment tax treatment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided payment pursuant to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted this Agreement under Code Section 409A), 409A and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes corresponding provisions of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsapplicable state income tax laws.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, Executive’s termination of employment with the Company Executive is a “specified employee” as defined in Section 409A of the Code, Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 7(i) in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section without 7(i) (together with interest for any interest thereonadditional deferral period resulting from this Section 7(i) at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the date of termination). The Company shall consult with Executive in good faith regarding the implementation of this Section 7(i). For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation Separation from serviceService” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean separation Separation from service. 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 paymentsService.

Compliance with Code Section 409A. (i) The intent of the parties Parties is that payments and benefits under this Agreement comply with or are be exempt from Code Section 409A of and, accordingly, to the Code and maximum extent permitted, this Agreement shall be interpreted and construed to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms therewith. If any provision of this Agreement that are undefined (or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments award of compensation, including equity compensation or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order benefits) would cause Executive to prevent incur any accelerated or additional tax or interest under Code Section 409A, then the Company will defer shall, after consulting with and receiving the commencement approval of Executive, reform such provision in a manner intended to avoid the payment incurrence by Executive of any such payments additional tax or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and interest. (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a 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 that are considered nonqualified deferred compensation under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A of the Code 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.” The determination of whether and when a separation from service has occurred for proposes of this Agreement shall be made in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulations. (iii) Any provision of this Agreement to the contrary notwithstanding, if at the time of Executive’s separation from service, the Company determines that Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent any payment or benefit that Executive becomes entitled to under this Agreement on account of such separation from service would be considered nonqualified deferred compensation under Code Section 409A, such payment or benefit shall be paid or provided at the date which is the earlier of (i) six (6) months and one day after such separation from service and (ii) the date of Executive’s death (the “Delay Period”). Each payment made Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 8(j) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or provided to Executive in a lump-sum, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment dates specified for them herein. (iv) Any reimbursements and the right to a series of installment payments in-kind benefits provided under this Agreement is that constitute deferred compensation within the meaning of Code Section 409A shall be made or provided in accordance with the requirements of Code Section 409A, including that (A) in no event shall any fees, expenses or other amounts eligible to be treated as reimbursed by the Company under this Agreement be paid later than the last day of the calendar year next following the calendar year in which the applicable fees, expenses or other amounts were incurred; (B) the amount of expenses eligible for reimbursement, or in-kind benefits that the Company is obligated to pay or provide, in any given calendar year shall not affect the expenses that the Company is obligated to reimburse, or the in-kind benefits that the Company is obligated to pay or provide, in any other calendar year, provided, however, that the foregoing clause (B) 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; (C) Executive’s right to a series have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit; and (D) in no event shall the Company’s obligations to make such reimbursements or to provide such in-kind benefits apply later than Executive’s remaining lifetime (or if longer, through the sixth (6th) anniversary of separate paymentsthe Effective Date).

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive Employee is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the ExecutiveEmployee) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive Employee hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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.

Compliance with Code Section 409A. The intent of the parties is that payments Compensation and benefits payable under this the Agreement comply with or are intended to be exempt from the definition of “nonqualified deferred compensation” under Section 409A of the Internal Revenue Code and of 1986, as amended (the “Code”) in accordance with one or more of the exemptions available under the Treasury Regulations promulgated under Section 409A. In this regard, each such payment that is made in a series of scheduled installments shall be deemed a separate payment for purposes of Section 409A. To the extent that any amounts or benefits payable under this Agreement are or become subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation under Section 409A, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and construed administered to the extent possible in a manner consistent with the foregoing statement of intent. Payments made from the date of your termination through March 15th of the calendar year following such termination are intended to be exempt from Section 409A pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations. Payments made following said March 15th are intended to be made upon an involuntary termination from service and payable pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations, to the maximum extent permitted by said provision. Notwithstanding any contrary provision of this Agreement, any amount or benefit that establishes fails to qualify for an exemption from Section 409A shall be subject to the distribution requirements of Section 409A(a)(2)(A) of the Code, including, without limitation, the requirement of Section 409A(a)(2)(B)(i) of the Code that amounts or benefits payable to you upon separation from service be delayed until the first regular payroll date which occurs more than 6 months after separation from service (or compliance withif earlier, the date of your death) if you are a “specified employee” within the requirements meaning of the aforesaid section of the Code Section 409A. Any at the time of such separation from service, with the first of such payments including all payments which would have been made during the period of such delay without regard thereto and without interest, and with subsequent payments, if any, made in accordance with the dates and terms otherwise provided herein. Your date of this Agreement termination for purposes of determining the date that are undefined any amount or ambiguous shall be interpreted in a manner benefit that complies with is treated as nonqualified deferred compensation under Code Section 409A is to the extent necessary be paid (or in determining whether an exemption to comply with Code Section 409A. Notwithstanding anything herein to the contrarysuch treatment applies), (i) if, and for purposes of determining whether you are a “specified employee” on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until shall be the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to on which you have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also incurred a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service409A(a)(2)(A)(i) and applicable guidance thereunder. Each payment made under In each case where this Agreement provides for the payment of an amount or benefit that constitutes nonqualified deferred compensation under Section 409A to be made to you within a designated period and such period begins and ends in different calendar years, the exact payment date within such range shall be treated as a separate payment determined by the Company, in its sole discretion, and the you shall have no right to a series of installment payments under this Agreement is to designate the year in which the payment shall be treated as a right to a series of separate paymentsmade.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits (A) This Agreement shall be interpreted to avoid any penalty sanctions under this Agreement comply with or are exempt from Section 409A of the Code and (“Section 409A”). If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of Section 409A, (i) all payments to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” within the meaning of such term under Section 409A, (ii) each payment made under this Agreement shall be interpreted treated as a separate payment and construed (iii) 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 Executive, directly or indirectly, designate the calendar year of payment. (B) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in a manner that establishes an exemption from (or compliance with) accordance with the requirements of Code Section 409A. Any terms 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (C) Notwithstanding any provision in this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, at the time of Executive’s separation from service with Employer, Employer has securities which are publicly traded on the date of terminationan established securities market, the Executive is a “specified employee” (as defined in Section 409A of the Code, 409A) and the deferral of it is necessary to postpone the commencement of any severance payments or benefits otherwise payable hereunder pursuant to this Agreement as a result of such termination of employment is necessary in order separation from service to prevent any accelerated or additional tax under Code Section 409A, then the Company Employer will defer postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise exempt from Section 409A until the first payroll date that occurs after the date that is six (6) months following Executive’s separation from service with Employer (as determined under Section 409A). If any payments are postponed pursuant to this Subsection 25(C), then such postponed amounts will be paid in a lump sum to Executive on the first business day payroll date that occurs after the date that is six (6) months following Executive’s separation from service with Employer. If Executive dies during the postponement period prior to the payment of any postponed amount, such amount shall be paid to the seventh month following personal representative of Executive’s estate within sixty (60) days after the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsExecutive’s death.”

Compliance with Code Section 409A. The intent (a) Notwithstanding anything to the contrary in this Agreement, no portion of the parties is that severance payments and benefits under this Agreement comply with Section 10 or are exempt Section 11 will be payable until Executive has a “separation from Section 409A of service” from the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) Company within the requirements meaning of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary409A. (b) Further, (i) ifif upon Executive’s separation from service, on the date of termination, the Executive is a “specified employee” as defined in (within the meaning of Code Section 409A and the regulations thereunder) of the CodeCompany, and the deferral of the commencement of if any severance payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order under this Agreement would be subject to prevent any accelerated or additional excise tax under Code Section 409A, then the Company will defer the commencement of the payment of any 409A because such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to are made within the 6-month period commencing upon the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A’s separation from service, then such payments shall be delayed until the first payroll cycle following six (6) months after such separation from service and paid in lump sum at such time. Each applicable severance payment hereunder is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the time specified under this Treasury Regulations. (c) The foregoing provisions are intended to comply with, or be exempt from, the requirements of Code Section without any interest thereon. Notwithstanding anything 409A so that no portion of the severance payments will be subject to the contrary herein, to the extent required by Code additional tax imposed under Section 409A, a termination of employment shall not and any ambiguities herein will be deemed interpreted to have occurred for purposes so comply or be exempt. Executive and the Company agree to work together in good faith to consider amendments to the Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any provision of this Agreement providing additional tax or income recognition prior to actual payment to Executive under Section 409A. In no event will the Company reimburse Executive for the payment of amounts or benefits upon or following any taxes that may be imposed on Executive as a termination of employment unless such termination is also a “separation from service” within the meaning result of Section 409A 409A.” 8. A new Section 24 of the Code 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. Each payment made under this Agreement shall be treated read 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.follows:

Compliance with Code Section 409A. (a) The intent of the parties Parties is that payments and benefits under this Agreement comply with or are be exempt from Code Section 409A of and, accordingly, to the Code and maximum extent permitted, this Agreement shall be interpreted and construed to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms therewith. Notwithstanding any provision of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the neither Brixmor nor any other Releasee shall have any liability to Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of or to any other person or entity if any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax not so compliant or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a exempt. (b) 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 upon or following a termination or (h) of employment unless such termination is also a “the Treasury Regulations. (c) Notwithstanding any provision of this Agreement to the contrary, if at the time of Executive’s separation from service, Brixmor determines that Executive is a “specified employee,” within the meaning of Code Section 409A 409A, then to the extent any payment or benefit that Executive becomes entitled to under this Agreement on account of such separation from service would be considered nonqualified deferred compensation under Code Section 409A, such payment or benefit shall be paid or provided at the date which is the earlier of (i) six (6) months and one day after such separation from service and (ii) the date of Executive’s death (the “Delay Period”). Upon the expiration of the Code andDelay Period, for purposes all payments and benefits delayed pursuant to this Section 17 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or provided to Executive in a lump-sum, without interest, and any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal 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 paymentsdates specified for them herein.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, Executive’s termination of services with the Company Executive is a “specified employee” as defined in Section 409A of the Internal Revenue Code (the “Code”), and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the first business day to occur following the date that is six (6) months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A409A of the Code), ; and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 10 in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section 10 without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 10; provided that neither the Corporation nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean separation from service. Each For purposes of Section 409A of the Code, each payment made under this Agreement shall be treated designated as a “separate payment and payment” within the right to a series meaning of installment payments under this Agreement is to be treated as a right to a series the Section 409A of separate paymentsthe Code.

Compliance with Code Section 409A. The intent With respect to reimbursements or in-kind benefits provided under this Agreement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement, (b) any reimbursement of provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement) shall be made not later than December 31st of the parties year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that payments and benefits any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall the treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of imposed under Code Section 409A. Any terms In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Code Section 409A, the parties agree to amend this Agreement that are undefined or ambiguous shall be interpreted in order to bring this Agreement into compliance with Code Section 409A; and thereafter interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the deferral of the commencement of Executive shall be responsible for any payments taxes, penalties and interest imposed on him under or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this in connection with the Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. 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.

Compliance with Code Section 409A. The intent With respect to reimbursements or in-kind benefits provided under this Agreement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement, (b) any reimbursement or provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement) shall be made not later than December 31st of the parties year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that payments and benefits any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with or are exempt from the provisions of Section 409A of the Code and the treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be imposed under Section 409A of the Code. In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Section 409A of the Code, the parties agree to amend this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of order to bring this Agreement that are undefined or ambiguous shall be interpreted into compliance with Section 409A of the Code; and thereafter interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the deferral of the commencement of Executive shall be responsible for any payments taxes, penalties and interest imposed on him under or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this in connection with the Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. 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.

Compliance with Code Section 409A. The intent (a) Notwithstanding anything in this Agreement to the contrary, the receipt of the parties is that payments and any benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed subject to have occurred for purposes satisfaction of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also condition precedent that Executive undergo a “separation from service” within the meaning of Treas. Reg. § 1.409A-1(h) or any successor thereto. In addition, if Executive is deemed to be a “specified employee” within the meaning of that term under Code Section 409A 409A(a)(2)(B), then with regard to any payment or the provisions of any benefit that is required to be delayed pursuant to Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the Code and, for purposes six (6) month period measured from the date of any such provision of this Agreement, references to a Executive’s “termination,” “termination of employment” or like terms shall mean separation from service” (as such term is defined in Treas. Each payment made Reg. § 1.409A-1(h)), or (ii) the date of Executive’s death (the “Delay Period”). Within ten (10) days following the expiration of the Delay Period, all payments and benefits delayed pursuant to this section (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 Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be treated paid or provided in accordance with the normal payment dates specified for them herein. To the extent that the foregoing applies to the provision of any ongoing welfare benefits to Executive that would not be required to be delayed if the premiums therefore were paid by Executive, Executive shall pay the full costs of premiums for such welfare benefits during the Delay Period and JSSB shall pay Executive an amount equal to the amount of such premiums paid by Executive during the Delay Period within ten (10) days after the conclusion of such Delay Period. (b) Except as a separate payment otherwise expressly provided herein, to the extent any expense reimbursement or other in-kind benefit is determined to be subject to Code Section 409A, the amount of any such expenses eligible for reimbursement or in-kind benefits in one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits in any other taxable year (except under any lifetime limit applicable to expenses for medical care), in no event shall any expenses be reimbursed or in-kind benefits be provided after the last day of the calendar year following the calendar year in which Executive incurred such expenses or received such benefits, and the in no event shall any right to a series reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. (c) Any payments made pursuant to Sections 5 and 6, to the extent of installment payments under this Agreement made from the date of termination through March 15th of the calendar year following such date, are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) and thus payable pursuant to the “short-term deferral” rule set forth in Treas. Reg. §1.409A-1(b)(4); to the extent such payments are made following said March 15th, they are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) made upon an involuntary termination from service and payable pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), to the maximum extent permitted by said provision. Notwithstanding the foregoing, if JSSB determines that any other payments hereunder fail to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), the payment of such benefit shall be delayed to the minimum extent necessary so that such payments are not subject to the provisions of Code Section 409A(a)(1). (d) To the extent it is determined that any benefits described in Section 6(b) are taxable to Executive, they are intended to be treated as a right payable pursuant to a series of separate paymentsTreas. Reg. §1.409A-1(b)(9)(v), to the maximum extent permitted by said provision.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with Company, on the date of termination, the Executive is a “specified employee” as defined in within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the rules and regulations there under, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day six months following Executive’s termination of the seventh month following the date of termination employment with Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In 409A of the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax Code, or additional tax under Code Section 409A, then otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent required possible, in a reasonable manner, determined by the Board, that does not cause such an accelerated or additional tax. Any reimbursement provided under this Agreement shall be made no later than December 31 of the calendar year following the calendar year in which the related expense was incurred; provided, however, that in no event will reimbursements in one taxable year affect the amount of reimbursements in any other taxable year, nor shall the right to reimbursement be subject to liquidation or exchange for another benefit. No payment or benefit that is deferred compensation for purposes of Code Section 409A, a 409A and that is due upon Executive’s termination of employment shall not will be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts paid or benefits upon or following a termination of employment provided unless such termination is also a “separation from service” service within the meaning of Code Section 409A and the rules and regulations there under. Company shall consult with Executive in good faith regarding the application of this Section 13(g) to maximize tax efficiency, provided Company does not guarantee to the Code and, for purposes Executive any specific tax consequences relating to entitlement to or receipt of any such provision of payments or benefits pursuant to this Agreement, references and that neither Company nor any of its employees or representatives shall have any liability to a “termination,” “termination of employment” or like terms shall mean separation from serviceExecutive with respect thereto. Each Any cash payment made under this Agreement shall be treated deferred as a separate payment and consequence of this Section 13(g) shall bear interest at the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsprime rate until paid.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under Notwithstanding anything in this Agreement comply with to the contrary, if any amount or are benefit that the Corporation determines would constitute non-exempt from “deferred compensation” for purposes of Section 409A of the Code and would otherwise be payable or distributable under this Agreement shall be interpreted and construed in a manner that establishes an exemption by reason of Executive’s Separation from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A Service, then to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, 409A: (i) ifif the payment or distribution is payable in a lump sum, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments Executive’s right to receive payment or benefits otherwise payable hereunder as a result distribution of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company non-exempt deferred compensation will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) be delayed until the date that is earlier of Executive’s death or the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and Executive’s Separation from Service; and (ii) if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six (6) month period immediately following Executive’s Separation from Service will be accumulated and Executive’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s Separation from Service and paid on the earlier of such dates, without interest, and the normal payment or distribution schedule for any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such remaining payments or other benefits shall distributions will commence. To the extent any expense reimbursement or in-kind benefit to which Executive is or may be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments entitled to receive under this Agreement are constitutes non-exempt “deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred compensation” for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code andCode, for purposes of any then (i) such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement reimbursement shall be treated paid to Executive as soon as administratively practicable after Executive submits a separate payment valid claim for reimbursement, but in no event later than the last day of Executive’s taxable year following the taxable year in which the expense was incurred, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year of Executive shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year of Executive, and the (iii) Executive’s right to a series of installment payments under this Agreement is reimbursement or in-kind benefits shall not be subject to be treated as a right to a series of separate paymentsliquidation or exchange for another benefit.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits Any payment under this Agreement comply with or are exempt from Section 409A of 7 is subject to the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms provisions of this Agreement that are undefined Section 7(i) (except for a payment pursuant to Disability or ambiguous shall be interpreted in a manner that complies with Code death under Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, 7(e) or (i) if, on the date of termination, the f)). If Executive is a “specified employeeSpecified Employee” as defined in of the Company for purposes of Code Section 409A at the time of the Code, a payment event in Sections 7(b) or (c) and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under if no exception from Code Section 409A409A applies in whole or in part, then the severance or other payments will be made to Executive by the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is on the first business day of the seventh month following the date of termination the Executive’s Separation from Service (or the earliest date “409A Payment Date”). Should this Section 7(i) result in a delay of payments to Executive, the Company will begin to make the payments as is permitted under Code described in this Section 409A)7, and (ii) if provided that any other payments of money or other benefits due to the Executive hereunder could cause amounts that would have been payable earlier but for the application of an accelerated this Section 7(i), will be paid in lump-sum on the 409A Payment Date along with accrued interest at the rate of interest announced by the Company’s primary bank from time to time as its prime rate from the date that payments would otherwise have been made under this Agreement. The balance of the severance payments will be payable in accordance with regular payroll timing and the COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in Code Section 409A(a)(2)(B)(i), or additional tax under any successor provision and the issued treasury regulations and rulings. “Separation from Service” or “Termination of Employment” means, with respect to any payment that is subject to Code Section 409A, such payments either (a) termination of Executive’s employment with Company and all affiliates, or (b) a permanent reduction in the level of bona fide services Executive provides to Company and all affiliates to an amount that is 20% or less of the average level of bona fide services Executive provided to Company in the immediately preceding 36 months, with the level of bona fide service calculated in accordance with Treasury Regulations Section 1.409A-1(h)(1)(ii). Solely for purposes of determining whether Executive has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other benefits shall bona fide leave of absence (if the period of such leave does not exceed six months, or if longer, so long as Executive’s right to reemployment with Company or an affiliate is provided either by statute or contract). If Executive’s period of leave exceeds six months and Executive’s right to reemployment is not provided either by statute or by contract, the employment relationship is deemed to terminate on the first day immediately following the expiration of such six-month period. Whether a termination of employment has occurred will be deferred if deferral will make such payment or other benefits compliant under determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to Code Section 409A. In If the event that payments under this Agreement are deferred pursuant payment is not subject to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a term termination of employment shall not will be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsgiven its ordinary meaning.

Compliance with Code Section 409A. The intent (a) It is the intention of the parties is Company and Executive that payments and benefits under the provisions of this Agreement comply with or are exempt from Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), the Treasury regulations and other guidance promulgated or issued thereunder (“Section 409A”) pursuant to available exemptions under Section 409A, including but not limited to the “short-term deferral exception” and the “involuntary separation pay plan exception”, and the provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (or compliance with) intention. However, to the extent that the requirements of Code Section 409A. Any terms 409A are determined to be applicable to any provision of this Agreement that are undefined or ambiguous Agreement, such provision shall be interpreted construed in a manner that complies with Code Section 409A and any provision required for compliance with Section 409A that is omitted from this Agreement shall be incorporated herein by reference and shall apply retroactively, if necessary, and be deemed a part of this Agreement to the same extent necessary as though expressly set forth herein. If any provision of this Agreement would cause Executive to incur any additional tax or interest under Section 409A, the Company shall, upon Executive’s specific request, use its reasonable business efforts to in good faith reform such provision to comply with Code Section 409A. Notwithstanding anything herein 409A; provided, that to the contrary, (i) if, on the date of terminationmaximum extent practicable, the original intent and economic benefit to Executive and the Company of the applicable provision shall be maintained, but the Company shall have no obligation to make any changes that could create any additional economic cost or loss of benefit to the Company. The Company shall not have any liability to Executive with respect to tax obligations that result under any tax law and makes no representation with respect to the tax treatment of the payments and/or benefits provided under this Agreement. (b) To the extent any payment herein is a “specified employee” as defined in required to comply with Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise is payable hereunder as on a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409Aemployment, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the such payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” (excluding death) within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean “separation from service” (excluding death). Each If Executive is deemed on the date of termination to be a “specified employee,” within the meaning of that term under Section 409A(a)(2)(B) of the Code and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment or the providing of any benefit made under this Agreement, to the extent required to be delayed in compliance with Section 409A(a)(2)(B) of the Code, and any other payment or the provision of any other benefit that is required to be delayed in compliance with Section 409A(a)(2)(B) of the Code, such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of Executive’s “separation from service” or (ii) the date of Executive’s death. On the first day of the seventh month following the date of Executive’s “separation from service,” or if earlier, on the date of Executive’s death, all payments delayed pursuant to this subparagraph and Section 409A (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 Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal 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 paymentsdates specified herein.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with the Company, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with the Company for purposes of any provision of this Agreement providing for the and no payment shall be due to Executive under this Agreement on account of amounts or benefits upon or following a termination of employment unless any such termination is also until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 11(g); provided that neither the Company nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. (i) The intent of the parties is that payments and benefits under this Agreement comply with or are be exempt from Code Section 409A of and, accordingly, to the Code and maximum extent permitted, this Agreement shall be interpreted and construed to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms therewith. If any provision of this Agreement that are undefined (or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments award of compensation, including equity compensation or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order benefits) would cause Executive to prevent incur any accelerated or additional tax or interest under Code Section 409A, then the Company will defer shall, after consulting with and receiving the commencement approval of Executive, reform such provision in a manner intended to avoid the payment incurrence by Executive of any such payments additional tax or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and interest. (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a 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 that are considered nonqualified deferred compensation under Code Section 409A upon or following a termination of employment unless such termination is also a “"separation from service” " within the meaning of Code Section 409A of the Code 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." The determination of whether and when a separation from service has occurred for proposes of this Agreement shall be made in accordance with the presumptions set forth in Section I .409A- (h) of the Treasury Regulations. (iii) Any provision of this Agreement to the contrary notwithstanding, if at the time of Executive's separation from service, the Company determines that Executive is a "specified employee," within the meaning of Code Section 409A, then to the extent any payment or benefit that Executive becomes entitled to under this Agreement on account of such separation from service would be considered nonqualified deferred compensation under Code Section 409A, such payment or benefit shall be paid or provided at the date which is the earlier of (x) six months and one day after such separation from service and (y) the date of Executive's death (the "Delay Period"). Each payment made Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 9(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or provided to Executive in a lump-sum, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment dates specified herein. (iv) Any reimbursements and the right to a series of installment payments in-kind benefits provided under this Agreement that constitute deferred compensation within the meaning of Code Section 409A shall be made or provided in accordance with the requirements of Code Section 409A, including that (A) in no event shall any fees, expenses or other amounts eligible to be reimbursed by the Company under this Agreement be paid later than the last day of the calendar year that follows the calendar year in which the applicable fees, expenses or other amounts were incurred; (B) the amount of expenses eligible for reimbursement, or inkind benefits that the Company is obligated to pay or provide, in any given calendar year shall not affect the expenses that the Company is obligated to reimburse, or the in-kind benefits that the Company is obligated to pay or provide, in any other calendar year, provided that the foregoing clause (B) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 1 05(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect; and (C) Executive's right to have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit. (v) For purposes of Code Section 409A, Executive's right to receive any installment payments 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 (for example, "payment shall be made within 30 days following the date of termination"), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent such payment is subject to Code Section 409A.

Compliance with Code Section 409A. The intent of To the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and construed in a manner Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that establishes an exemption from (or compliance with) may be issued after the requirements Effective Date. A termination of Code Section 409A. Any terms employment shall not be deemed to have occurred for purposes of this Agreement providing for the payment of any amounts or benefits that are undefined or ambiguous shall be interpreted in a manner that complies with Code considered nonqualified deferred compensation under Section 409A upon or following a termination of employment, unless such termination is also a “separation from service” within the meaning of Section 409A and the payment thereof prior to the extent necessary to comply with Code a “separation from service” would violate Section 409A. For purposes of any such provision of this Agreement relating to any such payments or benefits, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” Notwithstanding anything herein any provision of the Agreement to the contrary, (i) if, on if at the date time of termination, the Executive’s termination of employment with the Company the Executive is a “specified employee” as defined in Section 409A Code and related Department of the Code, Treasury guidance and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will shall defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business six months and one day of the seventh month following the date Executive’s termination of termination employment with the Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, the Company may (a) adopt such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything amendments to the contrary hereinAgreement, including amendments with retroactive effect, that the Company determines necessary or appropriate to preserve the extent required intended tax treatment of the benefits provided by Code Section 409A, a termination of employment shall not be deemed the Agreement and/or (b) take such other actions as the Company determines necessary or appropriate to have occurred for purposes of any provision of this Agreement providing for comply with the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning requirements of Section 409A of the Code and, for purposes and related Department of any such provision Treasury guidance. The Company shall consult with the Executive in good faith regarding the implementation of this Agreement, references Section 14; provided that neither the Company nor any of its employees or representatives shall have any liability to a “termination,” “termination of employment” or like terms shall mean separation from service. 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 paymentsExecutive with respect thereto.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement intended to comply with or are exempt from Section 409A of the Code and this Agreement shall will be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. so interpreted. Notwithstanding anything herein to the contrary, (i) if, on at the date time of terminationEmployee’s termination of employment with the Company, the Executive Employee is a “specified employee” as defined in Section 409A of the Code, and if the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent the imposition of any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the ExecutiveEmployee) until the date that is the first business day of the seventh month six months following the date of termination Employee’s Termination Date (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, the parties agree to restructure the payments or benefits to comply with Section 409A of the Code Section 409A, in a manner which does not diminish the value of such payments or other and benefits shall be deferred if deferral will make such to the Employee. Each payment or other benefits compliant under Code Section 409A. In the event that payments made under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also designated as a “separation from serviceseparate payment” within the meaning of Section 409A of the Code andCode. To the extent any reimbursements of in-kind benefits due to the Employee under this Agreement constitute “deferred compensation” under Section 409A of the Code, for purposes any such reimbursements of in-kind benefits shall be paid to the Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). If, after payment of any such provision of amounts or benefits under this Agreement, references to a “termination,” “termination the Internal Revenue Service determines that the payment of employment” such amounts or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment benefits does not comply with Section 409A of the Code, and the right Internal Revenue Service imposes upon the Employee accelerated or additional tax, penalties, interest or other charges under Section 409A of the Code, the Company shall pay to a series the Employee before the due date that the Employee is required to make payment to the Internal Revenue Service, an amount such that, after payment of installment payments under this Agreement is all taxes, penalties, or interest in respect thereof, the Employee will have remaining the full amount necessary to be treated as a right satisfy the Employee’s obligation to a series of separate paymentspay any accelerated or additional tax, penalties, interest and charges so imposed by the Internal Revenue Service.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under Notwithstanding anything in this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif the Employee is subject to US Federal income tax on any part of the payment of the PSUs and the Award is subject to Section 409A, on then the date PSUs shall be subject to the following provisions of termination, this Section 9. If the Executive Employee is a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement any issuance or payment in respect of the payment PSUs under Section 8 of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date this Agreement above that is on account of the Employee’s separation from service and is scheduled to be paid within six months after such separation from service shall accrue without interest and shall be paid as soon as reasonably practicable after the first business day of the seventh month following beginning after the date of termination (or the earliest date Employee’s separation from service or, if earlier, as is permitted under Code soon as reasonably practicable following the Employee’s death. During such delayed distribution period, the Employee shall continue to be credited with cash amounts equal to dividends on Common Stock for the applicable Award pursuant to Section 409A)4 of this Agreement, and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits amounts shall accrue without interest and shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. paid in a lump sum at the time specified in the preceding sentence. In the event of a “Change in Control” under section 6(b) of the Plan that payments under this Agreement are deferred pursuant to this Section is not also a “change in order to prevent any accelerated tax control event” within the meaning of Treas. Reg. §1.409A-3(i)(5)(i), the PSUs shall vest as set forth in section 6(a) of the Plan, but shall not be paid upon such Change in Control or additional tax under Code Section 409Atermination of employment as provided by section 6(a) of the Plan, then such payments and shall instead be paid at the time specified under the PSUs would otherwise be settled at the end of the applicable performance period in accordance with Section 8 of this Section without any interest thereonAgreement. Notwithstanding anything References to the contrary herein, to the extent required by Code Section 409A, a termination of employment and separation from service shall not be deemed interpreted to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following mean a termination of employment unless such termination is also a “separation from service” , within the meaning of Section 409A 409A, with the Company and all of the Code and, for its affiliates treated as a single employer under Section 409A. This Agreement shall be construed in a manner consistent with Section 409A. For purposes of any such provision Section 409A, the payment of this Agreement, references to a “termination,” “termination dividend equivalents under Section 4 of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated construed as a separate payment earnings and the right to a series time and form of installment payments under this Agreement is to payment of such dividend equivalents shall be treated as a right to a series separately from the time and form of separate paymentspayment of the underlying PSUs.

Compliance with Code Section 409A. The intent A. It is the intention of Hxxxxx and the parties is Executive that payments the payments, benefits and benefits under rights to which the Executive could be entitled pursuant to this Agreement comply with Code Section 409A, the Treasury regulations and other guidance promulgated or are exempt from issued thereunder (collectively for purposes of this paragraph “22”, “Section 409A”) to the extent that the requirements of Section 409A are applicable thereto, and after application of all available exemptions, including but not limited to the Code “short-term deferral rule” and “involuntary separation pay plan exception” and the provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonintention. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes of If any provision of this Agreement providing for (or of any award of compensation, including equity compensation or benefits) would cause the payment Executive to incur any additional tax or interest under Section 409A, Hxxxxx shall, upon the specific request of amounts the Executive, use its reasonable business efforts to in good faith reform such provision to comply with Section 409A; provided that, to the maximum extent practicable, the original intent and economic benefit to the Executive and Hxxxxx of the applicable provision shall be maintained, but Hxxxxx shall have no obligation to make any changes that could create any additional economic cost or benefits upon or following a termination loss of employment unless such termination is also a “separation benefit to Hxxxxx. Notwithstanding the preceding, Hxxxxx shall indemnify the Executive with respect to tax obligations that result from service” within the meaning application of Section 409A with respect to the payments and/or benefits provided under this Agreement to the extent such tax obligations arise from the fact that the Employment Agreement did not reflect certain provisions of the First Amendment to the Amended and Restated Employment Agreement that were intended to be carried over without change. Any provision required for compliance with Section 409A that is omitted from this Agreement shall be incorporated herein by reference and shall apply retroactively, if necessary, and be deemed a part of this Agreement to the same extent as though expressly set forth herein. B. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expense eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code and, for Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred. C. For purposes of any such provision applying the provisions of Section 409A to this Agreement, references each separately identified amount to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made which the Executive is entitled under this Agreement shall be treated as a separate payment and within the right meaning of Section 409A. In addition, to a the extent permissible under Section 409A, any series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments. D. Neither Hxxxxx nor the Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. If the consideration period (or revocation period, if applicable) for any general release and waiver extends across two (2) calendar years, the payments to the Executive shall begin in the second of the calendar years. E. If and to the extent required to comply with Section 409A, a Termination of Employment, as defined above, shall not be deemed to have occurred for purposes of this Agreement providing for the payment of any amounts or benefits upon or following a Termination of Employment unless such termination is also a “Separation from Service” within the meaning of Section 409A and, for purposes of any provision of this Agreement, references to Termination of Employment, “termination,” “termination of employment”, or like terms shall mean “Separation from Service”. F. If the Executive is deemed on the date of termination of his employment to be a “specified employee,” within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by Hxxxxx from time to time, or if none, the default methodology under Section 409A, then with regard to any payment or the providing of any benefit subject to this Agreement and to the extent required to be delayed in compliance with Code Section 409A(a)(2)(B), and any other payment or the provision of any other benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s Separation from Service or (ii) the date of the Executive’s death. In this regard, it is the intention and understanding of Hxxxxx and the Executive that payments made following a Termination of Employment under paragraph “8” shall be exempt under the “short-term deferral rule” and “involuntary separation pay plan exception”, and other applicable exceptions, from the requirements of Code Section 409A(a)(2)(B) and are not required and shall not be delayed. Absent such exception, on the first day of the seventh month following the date of Executive’s Separation from Service or, if earlier, on the date of his death, all payments delayed pursuant to this paragraph “22.F.” (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 any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. The determination of whether the Executive is a “specified employee” shall be made by Hxxxxx in good faith applying Section 409A.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, Executive’s termination of employment with the Company Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following Executive’s termination of employment with the date of termination Company (or the earliest date as is permitted under Code Section 409A409A of the Code), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 11(i) in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section 11(i) without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 11(i); provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation Separation from serviceService” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean separation Separation from serviceService. Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a “deferral of compensation” within the meaning of Section 409A of the Code (x) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (y) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (z) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. 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.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In 409A of the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax Code, or additional tax under Code Section 409A, then otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent required possible, in a manner, determined by Code Section 409Athe Board of Directors or the Committee, a termination of employment shall that does not be deemed to have occurred for cause such an accelerated or additional tax. For purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code andCode, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each each payment made under this Agreement shall be treated designated as a “separate payment payment” within the meaning of the Section 409A of the Code, and references herein to Executive’s “termination of employment” shall refer to Executive’s separation from service with the right Company within the meaning of Section 409A. To the extent any reimbursements or in-kind benefits due to a series of installment payments Executive under this Agreement is constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to be treated as Executive in a right manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 9(h); provided that neither the Company nor any of its employees or representatives shall have any liability to a series of separate payments.Executive with respect to thereto or any tax imposed under Section 409A.

Compliance with Code Section 409A. The intent of (a) This Agreement shall be construed, interpreted, and administered in a manner so that the parties is that payments benefits, payments, and benefits reimbursements under this Agreement comply with or the plans, policies, or programs referred to in this Agreement that are exempt from nonqualified deferred compensation under Code Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) will satisfy the requirements of Code Section 409A. Any terms 409A and will not result in the imposition of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the 409A. (b) Each payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. Each payment made compensation under this Agreement shall be treated as a separate payment and the right to a for purposes of Code Section 409A. Any series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments, and not one of a series of payments treated as a single payment for purposes of Code Section 409A. (c) To the extent that any benefits, payments, and reimbursements under this Agreement or the plans, policies, or programs referred to in this Agreement are nonqualified deferred compensation under Code Section 409A, are paid or provided during the six (6) months after the date of Separation from Service, and are paid or provided by virtue of the Executive's Separation from Service, the Company shall take the following actions. If the Executive is a specified employee on the date of Separation from Service, and to the extent not otherwise provided in this Agreement or the plans, policies, or programs referred to in this Agreement, the Company shall withhold these benefits, payments, and reimbursements from the date of Separation from Service through the end of the sixth month after the date of Separation from Service (the “Mandatory Holdback Period”). The Company shall pay and provide these benefits, payments, and reimbursements in a single lump sum on the first business day of the seventh (7th) month after the date of Separation from Service, or if earlier, no later than thirty days after the date of the Executive's death after the date of Separation from Service (the “Mandatory Delayed Payment Date”). If the Company withholds any in-kind benefit or reimbursement during the Mandatory Holdback Period, the Executive may pay the provider of the benefit or service, and receive reimbursement on the Mandatory Delayed Payment Date. (d) All reimbursements and in kind benefits made to the Executive that are nonqualified deferred compensation under Code Section 409A shall be made or provided in accordance with the requirements of Code Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in this Agreement or if no such period is specified, during the Executive's lifetime, (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. (e) The definitions of Good Reason in Sections 8(c) and 9(h) of this Agreement are intended to satisfy the requirements of Treasury Regulation Section 1.409A-1(n)(2) so that Separation from Service or Covered Termination for Good Reason will be treated as an involuntary Separation from Service under Code Section 409A. (f) The Executive acknowledges that to avoid an additional tax on payments that may be payable under this Agreement and that constitute deferred compensation that is not exempt from Code Section 409A, the Executive must make a reasonable, good faith effort to collect any payment or benefit to which Executive believes Executive is entitled hereunder no later than ninety (90) days of the latest date upon which the payment could under this Agreement could have been timely paid pursuant to Code Section 409A, and if not paid or provided, take further enforcement measures within 180 days after such latest date. (g) The provisions of this Section 19 control over any conflicting provisions of this Agreement, or the plans, policies, or programs referred to in this Agreement.

Compliance with Code Section 409A. The intent It is the intention of the parties is Company and the Participant that payments the payments, benefits and benefits under rights to which the Participant could be entitled pursuant to this Agreement comply with or are be exempt from Section 409A (to the extent that the requirements of Section 409A are applicable thereto), after application of all available exemptions (including without limitation the Code and short-term deferral rule, the involuntary separation pay plan exception, or the specified payment date rule). The provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms intention. If any provision of this Agreement that are undefined contravenes Section 409A, or ambiguous shall be interpreted would cause Participant to incur any additional tax, interest or penalty under Section 409A, the Company and Participant agree in a manner that complies with Code Section 409A good faith to the extent necessary reform this Agreement to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then or to take such other actions as the Company will defer and the commencement of the payment of any such payments Participant deem necessary or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided appropriate, to maintain, to the Executive) until maximum extent practicable, without violating the date that is the first business day provisions of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments the original intent and economic benefit to the Participant and the Company of the applicable provision; provided that the Company shall have no obligation to make any changes that could create any additional economic cost or other benefits loss of benefit to the Company. Any provision required for compliance with Section 409A that is omitted from this Agreement shall be deferred incorporated herein by reference and shall apply retroactively, if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under necessary, and be deemed a part of this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonsame extent as though expressly set forth herein. Notwithstanding anything to the contrary hereincontrary, the Company makes no representation with respect to the tax treatment of the payments and/or benefits provided under this Agreement, and in no event will Company be liable for, pay or reimburse any additional tax, interest or penalties that may be imposed on the Participant under Section 409A. If required to comply with Section 409A (but only to the extent required by Code Section 409Aso required), 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 upon or following a termination of employment unless such termination is also a “separation Separation from serviceService” within the meaning of Section 409A of the Code (excluding death) and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” “separation from employment,” “termination,” or like terms shall mean separation “Separation from service. 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 paymentsService” (excluding death).

Compliance with Code Section 409A. The intent of the parties It is intended that payments and benefits under any payment or benefit which is provided pursuant to or in connection with this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall which is considered to be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with nonqualified deferred compensation subject to Code Section 409A to shall be paid and provided in a manner, and at such time, including without limitation payment and provision of benefits only in connection with the extent necessary to comply with occurrence of a permissible payment event contained in Code Section 409A. Notwithstanding anything herein to 409A (e.g. death, disability, separation from service from the contrary, (i) if, on the date of termination, the Executive is a “specified employee” Company and its affiliates as defined in Section 409A for purposes of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments in such form, as complies with the applicable requirements of money or other benefits due Code Section 409A to avoid the Executive hereunder could cause the application of an accelerated or additional unfavorable tax under consequences provided therein for non-compliance. In connection with effecting such compliance with Code Section 409A, the following shall apply: A. Notwithstanding any other provision of this Agreement, the Company is authorized to amend this Agreement, to void or amend any election made by Employee under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Code Section 409A (including any transition or grandfather rules thereunder); provided, however, that before the Company may take any of such actions, the Company shall provide notice to Employee reasonably in advance of such actions explaining the basis for its determination that such actions are necessary and appropriate. B. Neither Employee nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any manner which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). C. If Employee is a specified employee for purposes of Code Section 409A(a)(2)(B)(i), any payment or provision of benefits that is nonqualified deferred compensation subject to Code Section 409A and that is made in connection with a separation from service payment event (as determined for purposes of Code Section 409A) shall not be paid prior to the earlier of (x) the expiration of the six-month period measured from the date of Employee’s separation from service or (y) the date of Employee’s death (the “409A Deferral Period”). In the event such payments are otherwise due to be made in installments or other periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefit may be provided during the 409A Deferral Period at Employee’s expense, with Employee having a right to reimbursement from the Company once the 409A Deferral Period ends, and the balance of the benefits shall be deferred if deferral will make such payment or other provided as otherwise scheduled. D. For purposes of this Agreement, all rights to payments and benefits compliant under hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Code Section 409A. In the event that payments If under this Agreement are deferred pursuant Agreement, an amount is to this Section be paid in order to prevent any accelerated tax two or additional tax under more installments, for purposes of Code Section 409A, then such payments each installment shall be treated as a separate payment. In the event any payment payable upon termination of employment would be exempt from Code Section 409A under Treas. Reg. § 1.409A-1(b)(9)(iii) but for the amount of such payment, the determination of the payments to Employee that are exempt under such provision shall be made by applying the exemption to payments of deferred compensation based on chronological order beginning with the payments paid at the closest in time specified on or after such termination of employment. E. For purposes of determining time of (but not entitlement to) payment or provision of deferred compensation under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Agreement under Code Section 409A, 409A in connection with a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a employment, termination of employment unless such termination is also will be read to mean a “separation from service” within the meaning of Code Section 409A of the Code and, for purposes of 409A. F. With respect to any such provision of this Agreement, references payments or benefits provided to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Employee under this Agreement which are subject either in whole or in part to Code Section 409A, the Company shall be treated discharge its obligations under this Agreement with respect to such payments or benefits in compliance with all applicable requirements of Code Section 409A. If Employee incurs any taxes or interest as a separate payment result of failure by the Company or any agent of the Company to discharge its obligations under this Agreement in compliance with the requirements of Code Section 409A, the Company shall reimburse Employee in full for the amount of such taxes and interest (and for the amount of any additional taxes payable with respect to such reimbursement) so that Employee is restored to the same after-tax position in which Employee would have been in had the noncompliance with Code Section 409A not occurred. G. With regard to any provision herein that provides for reimbursement of expenses or in-kind benefits that are subject to Code Section 409A, except as permitted by Code Section 409A, (x) the right to a series reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (y) the amount of installment payments under this Agreement is expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year of Employee shall not affect the expenses eligible for reimbursement, or in-kind benefits to be treated as a right provided, in any other taxable year of Employee, provided that the foregoing clause (y) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a series of separate paymentslimit related to the period the arrangement is in effect. All reimbursements shall be reimbursed in accordance with the Company’s reimbursement policies but in no event later than Employee’s taxable year following Employee’s taxable year in which the related expense is incurred.

Compliance with Code Section 409A. The intent (a) If any of the parties is that payments and benefits under set forth in this Agreement comply with or are exempt from deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended, or any successor statute, regulation and this Agreement shall be interpreted and construed in a manner that establishes an exemption from guidance thereto (or compliance with) the requirements of “Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary409A”), (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the triggering payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also must constitute a “separation from service” within the meaning of under Code Section 409A before distribution of such benefits can commence. For purposes of clarification, this paragraph shall not cause any forfeiture of benefits on the part of the Code andExecutive, for purposes of any but shall only act as a delay until such provision of this Agreement, references to time as a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made ” occurs. (b) It is intended that each installment of the payments and benefits provided under this Agreement shall be treated as a separate payment and “payment” for purposes of Code Section 409A. Neither OXiGENE nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Code Section 409A. (c) Any reimbursements or direct payment of Executive’s expenses subject to Code Section 409A shall be made no later than the end of the calendar year following the calendar year in which such expense is incurred by the Executive. Any reimbursement or right to direct payment of Executive’s expense in one calendar year shall not affect the amount that may be reimbursed or paid for in any other calendar year and a series reimbursement or payment of installment payments under Executive’s expense (or right thereto) may not be exchanged or liquidated for another benefit or payment. (d) Notwithstanding any other provision of this Agreement is to the contrary, the Agreement shall be interpreted and at all times administered in a manner that avoids the inclusion of compensation in income under Code Section 409A(a)(1). Any provision inconsistent with Code Section 409A will be read out of the Agreement. For purposes of clarification, this Section 19(d) shall be a rule of construction and interpretation and nothing in this Section 19(d) shall cause a forfeiture of benefits on the part of the Executive. (e) Notwithstanding any other provision of this Agreement to the contrary, if any amount (including imputed income) to be treated paid to Executive pursuant to this Agreement as a right result of Executive’s termination of employment is “deferred compensation” subject to Code Section 409A, and if the Executive is a series “Specified Employee” (as defined under Code Section 409A) as of separate paymentsthe date of Executive’s termination of employment hereunder, then, to the extent necessary to avoid the imposition of excise taxes or other penalties under Code Section 409A, the payment of benefits, if any, scheduled to be paid by Company to Executive hereunder during the first six (6) month period following the date of a termination of employment hereunder shall not be paid until the date which is the first business day after six (6) months have elapsed since the Executive’s termination of employment for any reason other than death. Any deferred compensation payments delayed in accordance with the terms of this Section 19(e) shall be paid in a lump sum after six (6) months have elapsed since the Executive’s termination of employment. Any other payments will be made according to the schedule provided for herein.” 8. Except as specifically modified herein, the terms of the Agreement, and all terms and conditions of your employment with OXiGENE shall remain in full force and effect.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement intended to comply with or are exempt from Section 409A of the Code and this Agreement shall will be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. so interpreted. Notwithstanding anything herein to the contrary, (i) if, on at the date time of terminationEmployee’s termination of employment with the Company, the Executive Employee is a “specified employee” as defined in Section 409A of the Code, and if the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent the imposition of any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the ExecutiveEmployee) until the date that is the first business day of the seventh month six months following the date of termination Employee’s Termination Date (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such the parties agree to restructure the payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of comply with Section 409A of the Code andin a manner which does not diminish the value of such payments and benefits to the Employee. If, for purposes after payment of any such provision of amounts or benefits under this Agreement, references to a “termination,” “termination the Internal Revenue Service determines that the payment of employment” such amounts or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment benefits does not comply with Section 409A of the Code, and the right Internal Revenue Service imposes upon the Employee accelerated or additional tax, penalties, interest or other charges under Section 409A of the Code, the Company shall pay to a series the Employee before the due date that the Employee is required to make payment to the Internal Revenue Service, an amount such that, after payment of installment payments under this Agreement is all taxes, penalties, or interest in respect thereof, the Employee will have remaining the full amount necessary to be treated as a right satisfy the Employee’s obligation to a series of separate paymentspay any accelerated or additional tax, penalties, interest and charges so imposed by the Internal Revenue Service.

Compliance with Code Section 409A. (i) The intent of the parties is that payments and benefits under this Agreement comply with or are be exempt from Code Section 409A of and, accordingly, to the Code and maximum extent permitted, this Agreement shall be interpreted and construed to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms therewith. If any provision of this Agreement that are undefined (or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments award of compensation, including equity compensation or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order benefits) would cause Executive to prevent incur any accelerated or additional tax or interest under Code Section 409A, then the Company will defer shall, after consulting with and receiving the commencement approval of Executive, reform such provision in a manner intended to avoid the payment incurrence by Executive of any such payments additional tax or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and interest. (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a 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 that are considered nonqualified deferred compensation under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A of the Code 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.” The determination of whether and when a separation from service has occurred for proposes of this Agreement shall be made in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulations. (iii) Any provision of this Agreement to the contrary notwithstanding, if at the time of Executive’s separation from service, the Company determines that Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent any payment or benefit that Executive becomes entitled to under this Agreement on account of such separation from service would be considered nonqualified deferred compensation under Code Section 409A, such payment or benefit shall be paid or provided at the date which is the earlier of (x) six months and one day after such separation from service and (y) the date of Executive’s death (the “Delay Period”). Each payment made Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 9(i) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or provided to Executive in a lump-sum, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment dates specified for them herein. (iv) Any reimbursements and the right to a series of installment payments in-kind benefits provided under this Agreement that constitute deferred compensation within the meaning of Code Section 409A shall be made or provided in accordance with the requirements of Code Section 409A, including that (A) in no event shall any fees, expenses or other amounts eligible to be reimbursed by the Company under this Agreement be paid later than the last day of the calendar year next following the calendar year in which the applicable fees, expenses or other amounts were incurred; (B) the amount of expenses eligible for reimbursement, or in-kind benefits that the Company is obligated to pay or provide, in any given calendar year shall not affect the expenses that the Company is obligated to reimburse, or the in-kind benefits that the Company is obligated to pay or provide, in any other calendar year, provided that the foregoing clause (B) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect; and (C) Executive’s right to have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit. (v) For purposes of Code Section 409A, Executive’s right to receive any installment payments 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 (for example, “payment shall be made within 30 days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent such payment is subject to Code Section 409A.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and shall operate so that the payments and benefits set forth herein either shall be exempt from the requirements of Code Section 409A or shall comply with the requirements of such provision; provided, however, that in no event shall the Company be liable to the Executive for or with respect to any taxes, penalties or interest which may be imposed upon the Executive pursuant to Code Section 409A. For purposes of this Agreement, the terms “termination,” “termination of employment” and variations thereof shall mean a “separation from service” as defined in Treasury Regulation Section 1.409A-1(h) (i“Separation From Service”). To the extent that any Severance payment constitutes a “deferral of compensation” subject to Code Section 409A (a “409A Payment”), then, (A) ifin the event that a termination of Executive’s employment does not constitute a Separation From Service, such 409A Payment shall begin at such time as the Executive has otherwise experienced such a Separation from Service, and the date of such Separation from Service shall be deemed to be her Termination Date for purposes of Section 4(a) hereof, and (B) if on the date of terminationthe Executive’s Separation from Service, the Executive is a “specified employee” of a public company, as such term is defined in Treasury Regulation Section 1.409A-l(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Executive until the earlier of (i) six (6) months and one day after the Executive’s Separation from Service; or (ii) the date of her death, and shall be paid without adjustment for the delay in payment. The Executive hereby acknowledges that she has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A of and applicable state tax law. The Executive hereby agrees to bear the Code, and the deferral of the commencement entire risk of any payments or benefits otherwise payable hereunder as a result of such termination of employment adverse federal and state tax consequences and penalty taxes in the event any payment pursuant to this Agreement is necessary in order deemed to prevent any accelerated or additional tax under be subject to Code Section 409A, then and that no representations have been made to the Company will defer Executive relating to the commencement of the payment tax treatment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided payment pursuant to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted this Agreement under Code Section 409A), 409A and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes corresponding provisions of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. 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 paymentsapplicable state income tax laws.

Compliance with Code Section 409A. The intent of the parties (a) This Agreement is that payments and benefits under this Agreement intended to comply with or are exempt from Section 409A of the Code (“Section 409A”) or an exemption thereunder. This Agreement shall be construed, interpreted and administered to the extent possible in a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. If any payment or benefit cannot be provided or made at the time specified herein without the imposition on Executive of any additional tax, penalty, or interest under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter when such additional tax, penalty, or interest will not be imposed. For purposes of Section 409A, (i) any payments to be made under this Agreement upon a termination of employment that constitute “nonqualified deferred compensation” within the meaning of Section 409A shall only be made if such termination of employment constitutes a “separation from service” under Section 409A; (ii) each payment made under this Agreement shall be interpreted treated as a separate payment; and construed (iii) 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 Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in a manner that establishes an exemption from (or compliance with) accordance with the requirements of Code Section 409A. Any terms 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Executive's lifetime (or during a shorter period of time specified in this Agreement); (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred; and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any provision in this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on at the date time of terminationExecutive's separation from service with the Company, the Company has securities which are publicly traded on an established securities market, Executive is a “specified employee” (as defined in Section 409A of the Code, 409A) and the deferral of it is necessary to postpone the commencement of any severance payments or benefits otherwise payable hereunder pursuant to this Agreement as a result of such termination of employment is necessary in order separation from service to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise exempt from Section 409A until the first payroll date that occurs after the date that is six (6) months following Executive's separation from service with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted determined under Code Section 409A), and (ii) if . If any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred postponed pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A6.1(c), then such payments postponed amounts will be paid in a lump sum, without interest, to Executive on the first payroll date that occurs after the date that is six (6) months following Executive's separation from service with the Company. If Executive dies during the postponement period prior to the payment of any postponed amount, such amount shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinpersonal representative of Executive's estate within sixty (60) days after the date of Executive's death. (d) Notwithstanding the foregoing, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for Company makes no representations that the payment of amounts or payments and benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code 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. Each payment made provided under this Agreement comply with Section 409A and in no event shall the Company be treated as a separate payment and the right to a series liable for all or any portion of installment payments under this Agreement is to any taxes, penalties, interest or other expenses that may be treated as a right to a series incurred by Executive on account of separate payments.non-compliance with Section 409A.