Common use of Deferred Payment Clause in Contracts

Deferred Payment. Notwithstanding Section 2(e) above, the Participant may elect to defer the payment date of his or her vested Restricted Stock Units beyond the Scheduled Payment Date (such elected deferred payment date, the “Deferred Payment Date”), provided, that: (a) In order for a deferral election under this Section 3 to be effective, the Participant must make the election prior to the Grant Date. (b) A deferral election made by the Participant pursuant to this Section 3 with respect to one or more of the Participant’s Restricted Stock Units shall, subject to Sections 3(c) and (e) below, defer the payment date of such Restricted Stock Units to the Deferred Payment Date elected by the Participant, which must be one of the following: (i) the third (3rd) anniversary of the Scheduled Payment Date; (ii) the fifth (5th) anniversary of the Scheduled Payment Date; (iii) the seventh (7th) anniversary of the Scheduled Payment Date; (iv) the tenth (10th) anniversary of the Scheduled Payment Date; or (v) the date of the Participant’s Termination of Services which occurs after the Scheduled Payment Date. (c) The Participant shall also be permitted to further defer the payment date of his or her vested Restricted Stock Units beyond the Deferred Payment Date, provided that: (i) in order to be effective, the Participant must make such deferral election at least twelve (12) months prior to the Deferred Payment Date; (ii) a deferral election made by the Participant pursuant to this Section 3(c) shall defer the payment date of his or her vested Restricted Stock Units for a period of time (expressed in whole years) of not less than five (5) years and no more than ten (10) years beyond the Deferred Payment Date; and (iii) the Participant’s deferral election shall not become effective until twelve (12) months after the date on which it is made. The Participant shall be entitled to make more than one deferral election under this Section 3(c) with respect to his or her vested Restricted Stock Units, and any such new Deferred Payment Date election that becomes effective in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is made. (d) The Participant must make any deferral election permitted under this Section 3 in writing on the election form and in accordance with the procedures established by the Company. A deferral election is valid solely with respect to the Restricted Stock Units identified on the election form and must comply with the requirements of this Section 3 to be given effect. Subject to the requirements set forth in this Section 3, the Participant shall be entitled to make deferral elections with respect to all or only a portion of his or her Restricted Stock Units and any such deferral elections need not be the same for all of the Participant’s Restricted Stock Units. (e) If the Participant elects in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date, the payment date of such Restricted Stock Units, to the extent vested, shall occur within the thirty (30) day period following the earliest of the following to occur: (i) the Deferred Payment Date; (ii) the Participant’s Termination of Services (other than as a result of the Participant’s death, Disability or Retirement), but only if such Termination of Services qualifies as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) of the Plan with respect to “specified employees”; (iii) the Participant’s death; (iv) the Participant’s Disability; (v) the Scheduled Payment Date if the Participant has a Termination of Services due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below). (f) For purposes of Sections 2(c) and 3(e) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Plan); provided, that, no event shall constitute a “Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5).

Deferred Payment. (a) Notwithstanding Section 2(e) aboveanything herein to the contrary, the Participant may elect payment of $20,000,000 of the Aggregate Merger Consideration that would otherwise have been required to defer be paid at Closing to the Stockholders and Option Holders hereunder (the “Deferred Payment Amount”) shall be deferred and shall be due and payable by the Buyer to the Paying Agent (for subsequent payment to the Stockholders and Option Holders in accordance herewith), by wire transfer to an account designated by the Paying Agent, no later than the date that is the fifteen (15) month anniversary of his or her vested Restricted Stock Units beyond the Scheduled Payment Closing Date (such elected deferred payment date, the “Deferred Payment Date”), provided, that: (a) In order for a deferral election under this Section 3 to be effective, the Participant must make the election prior to the Grant Date. (b) A deferral election made by the Participant pursuant to this Section 3 with respect to one . All or more any portion of the Participant’s Restricted Stock Units shall, subject to Sections 3(c) and (e) below, defer the payment date of such Restricted Stock Units to the Deferred Payment Date elected by Amount paid to the ParticipantPaying Agent hereunder shall be paid together with interest thereon, which must be one of interest shall accrue at LIBOR plus 3% per annum, compounded quarterly, beginning on the following: (i) day immediately following the third (3rd) anniversary of the Scheduled Payment Date; (ii) the fifth (5th) anniversary of the Scheduled Payment Date; (iii) the seventh (7th) anniversary of the Scheduled Payment Date; (iv) the tenth (10th) anniversary of the Scheduled Payment Date; or (v) Closing Date and continuing through and including the date on which such amount is paid to the Paying Agent. The Buyer shall have the right to prepay all or any portion of the Participant’s Termination of Services which occurs after the Scheduled Payment Date. (c) The Participant shall also be permitted to further defer the payment date of his or her vested Restricted Stock Units beyond the Deferred Payment Date, provided that: (i) in order to be effective, the Participant must make such deferral election at least twelve (12) months Amount prior to the Deferred Payment Date; (ii) , provided, however, that if the Buyer opts to pay a deferral election made by portion, but not all, of the Participant pursuant Deferred Payment Amount prior to this Section 3(c) shall defer the payment date of his or her vested Restricted Stock Units for a period of time (expressed in whole years) of not less than five (5) years and no more than ten (10) years beyond the Deferred Payment Date; , such payment shall be in an aggregate amount of no less than $2,000,000 (plus accrued and unpaid interest thereon). Notwithstanding the foregoing, upon a Change of Control, Buyer shall pay to the Paying Agent an amount equal to the Deferred Payment Amount (including any accrued and unpaid interest thereon) less (i) any portion of the Deferred Payment Amount previously paid to the Paying Agent, (ii) any portion of the Deferred Payment Amount which the Buyer was permitted to deduct in accordance with Section 2.8(b) and (iii) the Participant’s deferral election General Indemnity Amount. Following a Change of Control and on the Deferred Payment Date, the Buyer shall pay to the Paying Agent the General Indemnity Amount (including any accrued and unpaid interest thereon) less any amounts which are the subject of a pending claim made by a Buyer Indemnified Party under Article VIII prior to the Deferred Payment Date. The Buyer shall promptly pay to the Paying Agent any portion of the Deferred Payment Amount which is not become effective until twelve (12) months after paid when due by the Buyer to the Paying Agent hereunder as a result of a claim for indemnification by a Buyer Indemnified Party under Article VIII upon such indemnity claim being finally resolved in accordance with Article VIII less any amounts that are finally resolved in accordance with Article VIII to be owed to such Buyer Indemnified Party pursuant to such indemnity claim. Such portion of the Deferred Payment Amount which is paid to the Paying Agent upon such indemnity claim being finally resolved shall continue to accrue interest at LIBOR plus 3% per annum through the date on which it is madeactually paid to the Paying Agent. The Participant portion of the Deferred Payment Amount that is not paid to the Paying Agent upon such indemnity claim being finally resolved shall accrue interest at LIBOR plus 3% per annum through and including the date upon which the indemnity claim was made by a Buyer Indemnified Party under Article VIII and such accrued interest shall be entitled paid to make more than one deferral election under this Section 3(c) with respect to his or her vested Restricted Stock Units, and any the Paying Agent upon such new Deferred Payment Date election that becomes effective indemnity claim being finally resolved in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is madeArticle VIII. (db) The Participant must make any deferral election permitted under this Deferred Payment Amount shall be subject to automatic reduction on a dollar for dollar basis in the event of (i) Dissenters’ Rights Payments in accordance with Section 3 in writing on the election form and 2.7(b) or (c), (ii) Adjustment Amount Payments in accordance with the procedures established by the Company. A deferral election is valid solely penultimate sentence of Section 2.3(d), (iii) Taxes due with respect to the Restricted Stock Units identified on the election form and must comply with the requirements of this Section 3 to be given effect. Subject to the requirements set forth in this Section 3, the Participant shall be entitled to make deferral elections with respect to all or only a portion of his or her Restricted Stock Units and any such deferral elections need not be the same for all of the Participant’s Restricted Stock Units. (e) If the Participant elects Straddle Period Tax Returns in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date, the payment date of such Restricted Stock Units, to the extent vested, shall occur within the thirty (306.11(c) day period following the earliest of the following to occur: (i) the Deferred Payment Date; (ii) the Participant’s Termination of Services (other than as a result of the Participant’s death, Disability or Retirement), but only if such Termination of Services qualifies as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) of the Plan with respect to “specified employees”; (iii) the Participant’s death; (iv) the Participant’s Disability; (v) the Scheduled Payment Date if the Participant has a Termination of Services any amount determined to be due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below)Buyer Indemnified Party in accordance with Article VIII. (f) For purposes of Sections 2(c) and 3(e) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Plan); provided, that, no event shall constitute a “Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5).

Deferred Payment. Notwithstanding Section 2(e2(d) above, the Participant may elect to defer the payment date of his or her vested Restricted Stock Units beyond the Scheduled Payment Date (such elected deferred payment date, the “Deferred Payment Date”), provided, that: (a) In order for a deferral election under this Section 3 to be effective, the Participant must make the election on or prior to the thirtieth (30th) day following the Grant Date. (b) A deferral election made by the Participant pursuant to this Section 3 with respect to one or more of the Participant’s Restricted Stock Units shall, subject to Sections 3(c) and (e) below, defer the payment date of such Restricted Stock Units to the Deferred Payment Date elected by the Participant, which must be one of the following: (i) the third (3rd) anniversary of the Scheduled Payment Date; (ii) the fifth (5th) anniversary of the Scheduled Payment Date; (iii) the seventh (7th) anniversary of the Scheduled Payment Date; (iv) the tenth (10th) anniversary of the Scheduled Payment Date; or (v) the date of the Participant’s Termination of Services which occurs after the Scheduled Payment Date. (c) The Participant shall also be permitted to further defer the payment date of his or her vested Restricted Stock Units beyond the Deferred Payment Date, provided that: (i) in order to be effective, the Participant must make such deferral election at least twelve (12) months prior to the Deferred Payment Date; (ii) a deferral election made by the Participant pursuant to this Section 3(c) shall defer the payment date of his or her vested Restricted Stock Units for a period of time (expressed in whole years) of not less than five (5) years and no more than ten (10) years beyond the Deferred Payment Date; and (iii) the Participant’s deferral election shall not become effective until twelve (12) months after the date on which it is made. The Participant shall be entitled to make more than one deferral election under this Section 3(c) with respect to his or her vested Restricted Stock Units, and any such new Deferred Payment Date election that becomes effective in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is made. (d) The Participant must make any deferral election permitted under this Section 3 in writing on the election form and in accordance with the procedures established by the Company. A deferral election is valid solely with respect to the Restricted Stock Units identified on the election form and must comply with the requirements of this Section 3 to be given effect. Subject to the requirements set forth in this Section 3, the Participant shall be entitled to make deferral elections with respect to all or only a portion of his or her Restricted Stock Units and any such deferral elections need not be the same for all of the Participant’s Restricted Stock Units. (e) If the Participant elects in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date, the payment date of such Restricted Stock Units, to the extent vested, shall occur within the thirty (30) day period following the earliest of the following to occur: (i) the Deferred Payment Date; (ii) the Participant’s Termination of Services (other than as a result of the Participant’s death, Disability death or RetirementDisability), but only if such Termination of Services qualifies as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) of the Plan with respect to “specified employees”; (iii) the Participant’s death; (iv) the Participant’s Disability; or (v) the Scheduled Payment Date if the Participant has a Termination of Services due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below). (f) For purposes of Sections 2(c) and 3(e) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Plan); provided, that, no event shall constitute a “Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5).. Form 7 3/15

Deferred Payment. Notwithstanding Section 2(eFollowing the Closing, Parent and the Company hereby agree that (i) aboveon October 1, 2021, Parent shall pay or cause to be paid by wire transfer of immediately available funds and pursuant to wire instructions provided by the Participant may elect Representative at least three Business Days prior to defer such date, to the payment date Payments Administrator, cash in an aggregate ​ ​ amount equal to $25,000,000 (the “Initial Deferred Payment”), and (ii) on December 15, 2021, Parent shall pay or cause to be paid by wire transfer of his or her vested Restricted Stock Units beyond immediately available funds and pursuant to wire instructions provided by the Scheduled Payment Date Representative at least three Business Days prior to such date, to the Payments Administrator, cash in an aggregate amount equal to $25,000,000 (such elected deferred payment datethe “Second Deferred Payment” and, together with the Initial Deferred Payment, the “Deferred Payment DateMerger Consideration”). The Payments Administrator shall distribute the Initial Deferred Payment and the Second Deferred Payment, providedin each case, that: within five Business Days after receipt thereof, (aA) In order to Company Equityholders (other than former holders of Options) in the amounts set forth for a deferral election under this Section 3 to such Company Equityholder in the Consideration Schedule in accordance with their Deferred Pro Rata Shares, which amounts shall be effective, paid by the Participant must make Payments Administrator by check or wire transfer in accordance with the election prior instructions provided by such Company Equityholder; and (B) to the Grant Date. Surviving Corporation the aggregate amount payable to former holders of Options as set forth in the Consideration Schedule (b) A deferral election made for further distribution to such former holders). For the avoidance of doubt, payment of the Deferred Merger Consideration when due is an unconditional joint obligation of Parent and the Company and the Deferred Merger Consideration is not subject to set-off or reduction in any manner whatsoever. Parent and the Company hereby waive any requirement of presentment, protest or demand for performance or any notice of nonperformance or other notices of any kind by the Participant pursuant to this Section 3 Company Equityholders or Representative with respect to one or more payment of the Participant’s Restricted Stock Units shall, subject to Sections 3(c) and (e) below, defer the payment date of such Restricted Stock Units to the Initial Deferred Payment Date elected by the Participant, which must be one of the following: (i) the third (3rd) anniversary of the Scheduled Payment Date; (ii) the fifth (5th) anniversary of the Scheduled Payment Date; (iii) the seventh (7th) anniversary of the Scheduled Payment Date; (iv) the tenth (10th) anniversary of the Scheduled Payment Date; or (v) the date of the Participant’s Termination of Services which occurs after the Scheduled Payment Date. (c) The Participant shall also be permitted to further defer the payment date of his or her vested Restricted Stock Units beyond the Second Deferred Payment Date, provided that: (i) in order to be effective, when due. The parties hereto agree that should Parent not make the Participant must make such deferral election at least twelve (12) months prior to the full payment of any Deferred Payment Date; (ii) a deferral election made by the Participant pursuant to this Section 3(c) shall defer the payment date of his or her vested Restricted Stock Units for a period of time (expressed in whole years) of not less than Merger Consideration within five (5) years and no more than ten (10) years beyond the Deferred Payment Date; and (iii) the Participant’s deferral election shall not become effective until twelve (12) months after Business Days the date on which it is made. The Participant such Deferred Merger Consideration becomes payable, any amount payable shall be entitled to make more than one deferral election under this Section 3(c) with respect to his or her vested Restricted Stock Units, and any accrue interest from the date such new Deferred Payment Date election that Merger Consideration becomes effective in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is made. (d) The Participant must make any deferral election permitted under this Section 3 in writing on the election form and in accordance with the procedures established by the Company. A deferral election is valid solely with respect payable to the Restricted Stock Units identified on the election form and must comply with the requirements of this Section 3 date such Deferred Merger Consideration has been paid at an interest rate equal to be given effect. Subject to the requirements set forth in this Section three percent (3, the Participant shall be entitled to make deferral elections with respect to all or only a portion of his or her Restricted Stock Units and any such deferral elections need not be the same for all of the Participant’s Restricted Stock Units. (e) If the Participant elects in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date, the payment date of such Restricted Stock Units, to the extent vested, shall occur within the thirty (30) day period following the earliest of the following to occur: (i) the Deferred Payment Date; (ii) the Participant’s Termination of Services (other than as a result of the Participant’s death, Disability or Retirement), but only if such Termination of Services qualifies as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) of the Plan with respect to “specified employees”; (iii) the Participant’s death; (iv) the Participant’s Disability; (v) the Scheduled Payment Date if the Participant has a Termination of Services due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below%). (f) For purposes of Sections 2(c) and 3(e) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Plan); provided, that, no event shall constitute a “Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5).

Deferred Payment. Notwithstanding Section 2(e(a) aboveIf, the Participant may elect to defer the payment date of his or her vested Restricted Stock Units beyond the Scheduled Payment Date (such elected deferred payment dateand only if, the “EBITDA” of the Company for the twelve-month period ending December 31, 2006 (the “2006 Deferred Payment Period”) is equal to or more than $606,000, on March 15, 2007 (the “2006 Deferred Payment Date”), providedBuyer shall pay to Seller the amount of $112,500 (the “2006 Deferred Payment Amount”). If, that: and only if, the “EBITDA” of the Company for the twelve-month period ending December 31, 2007 (athe “2007 Deferred Payment Period”) In order for a deferral election under this is equal to or more than $705,000, on March 15, 2008 (the “2007 Deferred Payment Date”), Buyer shall pay to Seller the amount of $112,500 (the “2007 Deferred Payment Amount” and together with the 2006 Deferred Payment Amount, the “Deferred Payment Amounts”). Buyer shall deliver any Deferred Payment due hereunder to Seller or the Escrow Agent in the manner pursuant to the terms of Section 3 5 of the Escrow Agreement. Any Deferred Payment to be effectivemade to Seller shall be made in the same manner as the Closing Payment is made, the Participant must make the election prior unless Seller provides notice to Buyer in writing of a change of account, and any Deferred Payment to be delivered to the Grant DateEscrow Agent shall be made to the account prescribed in the Escrow Agreement, unless the Escrow Agent provides notice to Buyer in writing of a change of account. (b) A deferral election made by the Participant pursuant to this Section 3 with respect to one or more of the Participant’s Restricted Stock Units shallAs used herein, subject to Sections 3(c) and (e) below“EBITDA” means, defer the payment date of such Restricted Stock Units to the Deferred Payment Date elected by the Participant, which must be one of the following: (i) the third (3rd) anniversary of the Scheduled Payment Date; (ii) the fifth (5th) anniversary of the Scheduled Payment Date; (iii) the seventh (7th) anniversary of the Scheduled Payment Date; (iv) the tenth (10th) anniversary of the Scheduled Payment Date; or (v) the date of the Participant’s Termination of Services which occurs after the Scheduled Payment Date. (c) The Participant shall also be permitted to further defer the payment date of his or her vested Restricted Stock Units beyond the Deferred Payment Date, provided that: (i) in order to be effective, the Participant must make such deferral election at least twelve (12) months prior to the Deferred Payment Date; (ii) a deferral election made by the Participant pursuant to this Section 3(c) shall defer the payment date of his or her vested Restricted Stock Units for a period of time (expressed in whole years) of not less than five (5) years and no more than ten (10) years beyond the Deferred Payment Date; and (iii) the Participant’s deferral election shall not become effective until twelve (12) months after the date on which it is made. The Participant shall be entitled to make more than one deferral election under this Section 3(c) with respect to his or her vested Restricted Stock Units, and any such new Deferred Payment Date election that becomes effective in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is made. (d) The Participant must make any deferral election permitted under this Section 3 in writing on the election form and in accordance with the procedures established by the Company. A deferral election is valid solely with respect to the Restricted Stock Units identified on applicable twelve-month period, net income, plus income taxes, plus interest expense, plus depreciation and plus depletion and amortization of the election form and must comply with the requirements of this Section 3 to be given effectCompany for such twelve-month period. Subject to the requirements set forth in this Section 3, the Participant EBITDA shall be entitled to make deferral elections with respect to all or only a portion of his or her Restricted Stock Units and any such deferral elections need not be determined using the same for all accounting methods and principles used in preparation of the Participant’s Restricted Stock Units. (e) If the Participant elects in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date, the payment date of such Restricted Stock Units, to the extent vested, shall occur within the thirty (30) day period following the earliest income statement of the following to occur: (i) Company for the Deferred Payment Date; (ii) twelve-month period ended December 31, 2004, except that any accounts or notes receivable of the Participant’s Termination of Services Company (other than as a result Court Receivables) at the end of the Participant’s death, Disability or Retirement), but only if such Termination of Services qualifies applicable twelve-month period that have aged more than ninety (90) days as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) end of the Plan with respect to “specified employees”; (iii) applicable twelve-month period shall be disregarded and not counted as assets of the Participant’s death; (iv) the Participant’s Disability; (v) the Scheduled Payment Date if the Participant has a Termination of Services due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below)Company. (f) For purposes of Sections 2(c) and 3(e) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Plan); provided, that, no event shall constitute a “Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5).

Deferred Payment. Notwithstanding Section 2(e(a) above, On the Participant may elect to defer the payment date of his or her vested Restricted Stock Units beyond the Scheduled Payment Date (such elected deferred payment date, the “Deferred Payment Date”), provided, that: (a) In order for a deferral election under this Section 3 to be effective, the Participant must make the election prior Buyer shall pay to the Grant DateExchange Agent for release to the Sellers, pro rata in accordance with their respective DPO Percentages, an amount equal to the excess, if any, of (A) the Deferred Obligation Amount over (B) the Deferred Payment Holdback. (b) A deferral election made by Within thirty (30) days following a Change of Control, Buyer shall pay to the Participant pursuant Exchange Agent for release to this Section 3 the Sellers, pro rata in accordance with respect their respective DPO Percentages, an amount equal to one or more the excess, if any, of (A) the Participant’s Restricted Stock Units shall, subject to Sections 3(cDeferred Obligation Amount over (B) and (e) below, defer the payment date of such Restricted Stock Units to the Deferred Payment Date elected by the Participant, which must be one of the following: (i) the third (3rd) anniversary of the Scheduled Payment Date; (ii) the fifth (5th) anniversary of the Scheduled Payment Date; (iii) the seventh (7th) anniversary of the Scheduled Payment Date; (iv) the tenth (10th) anniversary of the Scheduled Payment Date; or (v) the date of the Participant’s Termination of Services which occurs after the Scheduled Payment DateHoldback. (c) The Participant shall also be permitted After any payment referred to further defer in Sections 3.11(a) or 3.11(b), as soon as reasonably practicable after the payment date resolution of his or her vested Restricted Stock Units beyond each pending and unresolved claim included in the Pending Claims Amount, and subject to any corresponding adjustment to the Settled Claims Amount, the Settled Claims Adjustment Amount, the Deferred Obligation Amount and the Deferred Payment DateHoldback, provided that: Buyer shall pay to the Exchange Agent for release to the Sellers, pro rata in accordance with their respective DPO Percentages, an amount equal to the excess, if any, of (iA) in order to be effective, the Participant must make such deferral election at least twelve Deferred Obligation Amount over (12B) months prior to the Deferred Payment Date; (ii) a deferral election made by the Participant pursuant to this Section 3(c) shall defer the payment date of his or her vested Restricted Stock Units for a period of time (expressed in whole years) of not less than five (5) years and no more than ten (10) years beyond the Deferred Payment Date; and (iii) the Participant’s deferral election shall not become effective until twelve (12) months after the date on which it is made. The Participant shall be entitled to make more than one deferral election under this Section 3(c) with respect to his or her vested Restricted Stock Units, and any such new Deferred Payment Date election that becomes effective in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is madeHoldback. (d) The Participant must make Buyer may, at its option, prepay, in whole or in part, the Deferred Obligation Amount, at any deferral election permitted under this Section 3 in writing on the election form and in accordance with the procedures established by the Companytime or from time to time without penalty or premium. A deferral election is valid solely with respect Buyer shall give written notice to the Restricted Stock Units identified on Seller Representative and the election form and must comply with the requirements of this Section 3 Exchange Agent five (5) Business Days prior to be given effect. Subject to the requirements set forth in this Section 3, the Participant shall be entitled to make deferral elections with respect to all or only a portion of his or her Restricted Stock Units and any such deferral elections need not be the same for all of the Participant’s Restricted Stock Unitsoptional prepayment. (e) If the Participant elects in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date, the payment date of such Restricted Stock Units, to the extent vested, shall occur within the Within thirty (30) day period days following a Public Offering, Buyer shall pay to the earliest Exchange Agent for release to the Sellers, pro rata in accordance with their respective DPO Percentages, (x) if the date of such Public Offering is prior to the Termination Date, the lesser of (1) 100% of the following Deferred Obligation Amount and (2) an amount equal to occur: (iA) the Applicable Prepayment Percentage of the Debt Financing Shortfall, minus (B) the Deemed Principal Amount of any prepayments theretofore made in respect of the Deferred Obligation Amount (exclusive of prepayments under this Section 3.11(e)), plus (C) the Interest Component accreted to such date on the amount being prepaid; provided that such payment shall be reduced as necessary so that the remaining Deferred Obligation Amount shall not be less than the excess of (I) the Indemnification Sub-Limit over (II) the Settled Claims Amount; and (y) at any time on or after the Termination Date, the lesser of (1) 100% of the Deferred Obligation Amount and (2) an amount equal to (A) the Applicable Prepayment Percentage of the Debt Financing Shortfall, minus (B) the Deemed Principal Amount of any prepayments theretofore made in respect of the Deferred Obligation Amount (exclusive of prepayments under this Section 3.11(e)), plus (C) the Interest Component accreted to such date on the amount being prepaid; provided that such payment shall be reduced as necessary so that the remaining Deferred Obligation Amount shall not be less the Deferred Payment Date; (ii) the Participant’s Termination of Services (other than as a result of the Participant’s death, Disability or Retirement), but only if such Termination of Services qualifies as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) of the Plan with respect to “specified employees”; (iii) the Participant’s death; (iv) the Participant’s Disability; (v) the Scheduled Payment Date if the Participant has a Termination of Services due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below)Holdback. (f) For purposes Neither Buyer Parent nor Buyer may pay any dividend on, or make any payment on account of Sections 2(cthe purchase, redemption, retirement or other acquisition of, any of Equity Interests of Buyer, other than Permitted Payments, unless, substantially concurrently with such dividend or payment, Buyer pays to the Exchange Agent for release to the Sellers, pro rata in accordance with their respective DPO Percentages, an amount equal to the difference of (A) and 3(ethe Deferred Obligation Amount, minus (B) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Plan)Deferred Payment Holdback; provided, thathowever, no event that (x) if the date of such dividend or payment is prior to the Termination Date and (y) such dividend or payment is not made in connection with a leveraged recapitalization transaction, such payment to the Exchange Agent shall constitute a “be reduced as necessary so that the remaining Deferred Obligation Amount shall not be less than the excess of (I) the Indemnification Sub-Limit over (II) the Settled Claims Amount. (g) All payments (including prepayments) made by Buyer under this Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change 3.11 shall be made to the Exchange Agent in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5)accordance with Section 3.4.

Deferred Payment. Notwithstanding Section 2(e) above, the Participant may elect Fuels and LW shall be allowed to defer payment of Company Interim Tank Crude Payments up to the payment date of his or her vested Restricted Stock Units beyond the Scheduled Payment Date (such elected deferred payment date, the “Available Deferred Payment Date”), provided, thatAmount subject to the following: (ai) Any Company Interim Tank Crude Payments deferred by Fuels and LW shall be due on the twentieth (20th) day of the Delivery Month following the day Macquarie delivers to Fuels or LW the applicable invoice, (ii) In order for the event that on any given Business Day there is a deferral election Company Deferred Deficit, Fuels and LW shall pay to Macquarie the Company Deferred Deficit on the next succeeding Business Day following the date that Fuels or LW receives from Macquarie written notice of such Company Deferred Deficit. (iii) In the event of a termination of the Agreement or, subject to LW’s and Fuels’ rights and obligations set forth in clause (iv) and (v) below, a continuing Event of Default, (A) Fuels and LW shall no longer be permitted to defer any further Company Interim Tank Crude Payments and (B) any Company Interim Tank Crude Payments deferred under this Section 3 10.1(i) shall immediately become due and payable and be paid by to be effective, Macquarie on the Participant must make next succeeding Business Day following the election prior to date that Macquarie notifies Fuels or LW in writing of the Grant Dateamount due on account of the foregoing. (biv) A deferral election made by In the Participant pursuant event of a continuing Event of Default in respect of Fuels’ failure to deliver when due the Enterprise Bailee Letter, (A) Fuels and LW shall no longer be permitted to defer any further Company Interim Tank Crude Payments associated with and specifically tied to the Enterprise Location as calculated and determined in respect of the Enterprise Location as set forth on Schedule D to this Agreement, and (B) any such Company Interim Tank Crude Payments deferred under this Section 3 with respect 10.1(i) shall immediately become due and payable and be paid by LW and Fuels to one Macquarie on the next succeeding Business Day following the date that Macquarie notifies Fuels or more LW in writing of the Participant’s Restricted Stock Units shallamount based on the event described above in this clause (iv). (v) In the event of a continuing Event of Default in respect of a Tariff Payment Failure, subject (A) Fuels and LW shall no longer be permitted to Sections 3(cdefer any further Company Interim Tank Crude Payments associated with and specifically tied to the Colorado City Line Fill Location as calculated and determined in respect of the Colorado City Line Fill Location as set forth on Schedule D to this Agreement, and (B) any such Company Interim Tank Crude Payments deferred under this Section 10.1(i) shall immediately become due and payable and be paid by LW and Fuels to Macquarie on the next succeeding Business Day following the date that Macquarie notifies Fuels or LW in writing of the amount based on the event described above in this clause (v). (vi) In the event of (A) any default or breach by Fuels or LW of any agreement or provision under the Sublease, the Falco Lease or the Xxxxxx Lease, which default or breach continues beyond the expiration of any applicable notice or cure period, or (B) any termination, for any reason, of the Sublease, the Falco Lease or the Xxxxxx Lease, then, in either such event, (1) Fuels and LW shall no longer be permitted to defer any further Company Interim Tank Crude Payments associated with and specifically tied to the Xxxxx Station Location as calculated and determined in respect of the Xxxxx Station Location as set forth on Schedule D to this Agreement, and (2) any such Company Interim Tank Crude Payments deferred under this Section 10.1(i) shall immediately become due and payable and be paid by LW and Fuels to Macquarie on the next succeeding Business Day following the date that Macquarie notifies Fuels or LW in writing of the amount based on any such event described in clauses (A) and (eB) below, defer the payment date of such Restricted Stock Units to the Deferred Payment Date elected by the Participant, which must be one of the following: (i) the third (3rd) anniversary of the Scheduled Payment Date; (ii) the fifth (5th) anniversary of the Scheduled Payment Date; (iii) the seventh (7th) anniversary of the Scheduled Payment Date; (iv) the tenth (10th) anniversary of the Scheduled Payment Date; or (v) the date of the Participant’s Termination of Services which occurs after the Scheduled Payment Dateabove. (cvii) The Participant shall also be permitted Notwithstanding any other provision hereof, if the continuing Event of Default in respect of (A) Fuels’ failure to further defer deliver the payment date of his Enterprise Bailee Letter or her vested Restricted Stock Units beyond the Deferred Payment Date, provided that: (i) in order to be effective, the Participant must make such deferral election at least twelve (12) months prior to the Deferred Payment Date; (ii) a deferral election made by the Participant pursuant to this Section 3(c) shall defer the payment date of his or her vested Restricted Stock Units for a period of time (expressed in whole years) of not less than five (5) years and no more than ten (10) years beyond the Deferred Payment Date; and (iiiB) the Participant’s deferral election shall not become effective until twelve Tariff Payment Failure, as applicable, is cured by subsequent delivery of the Enterprise Bailee Letter or the making of a Tariff Make-Whole Payment or otherwise, as applicable, then, at such time, (121) months after the date on which it is made. The Participant shall such Event of Default will automatically be entitled to make more than one deferral election under this Section 3(c) with respect to his or her vested Restricted Stock Units, rescinded and any such new Deferred Payment Date election that becomes effective in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is made. (d) The Participant must make any deferral election permitted under this Section 3 in writing on the election form and waived for all purposes in accordance with the procedures established by last sentence of Section 19.1 and (2) the Company. A deferral election is valid solely with respect to the Restricted Stock Units identified on the election form and must comply with the requirements of this Section 3 to be given effect. Subject to the requirements set forth such applicable Company Interim Tank Crude Payments provided for in this Section 310.1(i), the Participant shall in respect of such applicable Lien Location, will automatically be entitled to make deferral elections with respect to all reinstated without any further action by Fuels, LW or only a portion of his or her Restricted Stock Units and any such deferral elections need not be the same for all of the Participant’s Restricted Stock UnitsMacquarie. (eviii) If Notwithstanding any other provision hereof, if any applicable defaults or breaches by Fuels or LW under the Participant elects Sublease, the Falco Lease or the Xxxxxx Lease, as applicable, are cured or waived or any of the Sublease, the Falco Lease or the Xxxxxx Lease that was previously terminated is reinstated or replaced to the reasonable satisfaction of Macquarie, then, at such time, the deferral of such Company Interim Tank Crude Payments provided for in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date10.1(i), the payment date of such Restricted Stock Units, to the extent vested, shall occur within the thirty (30) day period following the earliest in respect of the following to occur: (i) the Deferred Payment Date; (ii) the Participant’s Termination of Services (other than as a result of the Participant’s deathXxxxx Station Location will automatically be reinstated without any further action by Fuels, Disability LW or Retirement), but only if such Termination of Services qualifies as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) of the Plan with respect to “specified employees”; (iii) the Participant’s death; (iv) the Participant’s Disability; (v) the Scheduled Payment Date if the Participant has a Termination of Services due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below)Macquarie. (f) For purposes of Sections 2(c) and 3(e) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Plan); provided, that, no event shall constitute a “Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5).

Deferred Payment. Notwithstanding (a) The Deferred Payment shall be paid in three annual installments, each of which will be in an amount equal to the difference, if any, between $ 2,000,000 and the sum of (i) the Development Costs (as defined in Section 2(e1.5(b)) abovepaid by AEPC in the preceding twelve-month (12) period, plus (ii) the NEPA Costs (as defined in Section 1.5(c)) paid by AEPC in the preceding twelve-month (12) period, plus (iii) Title Defect Amounts which are determined after Closing. The first installment will be due and payable on July 31st of 2003, the Participant second installment will be due and payable on July 31st of 2004, and the third and final installment will be due and payable on July 31st of 2005. AEPC at its sole option may elect to defer continue to pay the payment date Development Costs and/or NEPA Costs in excess of his or her vested Restricted Stock Units beyond $2,000,000.00 during any above-described twelve-month period and any payments in excess of the Scheduled installment of the Deferred Payment Date (such elected deferred payment datethen due shall be credited against the next installment of the Deferred Payment due hereunder; however, the “aggregate Deferred Payment Date”), provided, that: (a) In order for a deferral election under this Section 3 shall not exceed $6,000,000.00. Xxxxxx shall promptly refund to be effective, the Participant must make the election prior to the Grant DateAEPC any amounts paid hereunder in excess of $6,000,000.00. (b) A deferral election made by the Participant pursuant to For purposes of this Section 3 with respect to one or more of the Participant’s Restricted Stock Units shall1.5, subject to Sections 3(c) and (e) below, defer the payment date of such Restricted Stock Units to the Deferred Payment Date elected by the Participant, which must be one of the following: Development Costs shall include (i) the third fifty percent (3rd50%) anniversary of the Scheduled Payment Date; Reimbursed Development Costs and (ii) the fifth (5th) anniversary Xxxxxx'x share of the Scheduled Payment Date; (iii) costs, other than NEPA Costs, incurred pursuant to the seventh (7th) anniversary terms of the Scheduled Payment Date; Joint Exploration Agreement, including costs for lease acquisition and lease maintenance, geological and geophysical activities, facility construction and operation, and all Costs (ivas defined therein) incurred under an applicable unit or joint operating agreements entered into pursuant to the tenth (10th) anniversary terms of the Scheduled Payment Date; or (v) the date of the Participant’s Termination of Services which occurs after the Scheduled Payment DateJoint Exploration Agreement. (c) The Participant For purposes of this Section 1.5, NEPA Costs shall also be permitted to further defer the payment date of his or her vested Restricted Stock Units beyond the Deferred Payment Date, provided that: include (i) in order fifty percent (50%) of: (A) that portion of the Reimbursed NEPA Costs attributable to be effective, the Participant must make such deferral election at least twelve (12) months prior NEPA compliance with respect to the Deferred Payment DateAtlantic Rim Coalbed Methane Project Environmental Impact Statement ("Atlantic Rim EIS") proportionately reduced by any of such amounts reimbursed to AEPC by third parties on or before the first anniversary of the Effective Date pursuant to the terms of any cost sharing agreement entered into with such third party, and (B) that portion of the Reimbursed NEPA Costs attributable to NEPA compliance with respect to Environmental Assessments ("EA") prepared for operations within the area subject to the Joint Exploration Agreement, except for the Environmental Assessment prepared for the Sun Dog Unit; (ii) a deferral election made by Xxxxxx'x share of costs for NEPA compliance with respect to the Participant Atlantic Rim EIS, including defense of NEPA documents applicable to the Atlantic Rim EIS before administrative appeal boards and district courts, incurred pursuant to this Section 3(cthe terms of the Joint Defense/Cost Sharing Agreement ("Cost Sharing Agreement") shall defer in the payment date form attached hereto as Exhibit H dated as of his or her vested Restricted Stock Units for a period the Closing Date and entered into between AEPC and Xxxxxx paid by AEPC on behalf of time (expressed in whole years) of not less than five (5) years and no more than ten (10) years beyond the Deferred Payment DateXxxxxx; and (iii) fifty percent (50%) of the Participant’s deferral election shall not become effective until twelve (12) months after the date on which it is made. The Participant shall be entitled costs attributable to make more than one deferral election under this Section 3(c) NEPA compliance with respect to his any and all EAs, excluding the EA prepared for the Sun Dog Unit, triggered by operations conducted under the Joint Exploration Agreement or her vested Restricted Stock Units, and any such new Deferred Payment Date election that becomes effective in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is made. (d) The Participant must make any deferral election permitted under this Section 3 in writing on the election form and in accordance with the procedures established by the Company. A deferral election is valid solely with respect applicable unit or joint operating agreement entered into pursuant to the Restricted Stock Units identified on the election form terms thereof, including defense of NEPA documents before administrative appeal boards and must comply with the requirements of this Section 3 to be given effect. Subject district courts, incurred pursuant to the requirements set forth in this Section 3, the Participant shall be entitled to make deferral elections with respect to all or only a portion of his or her Restricted Stock Units and any such deferral elections need not be the same for all terms of the Participant’s Restricted Stock UnitsCost Sharing Agreement and paid by AEPC on behalf of Xxxxxx. (e) If the Participant elects in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date, the payment date of such Restricted Stock Units, to the extent vested, shall occur within the thirty (30) day period following the earliest of the following to occur: (i) the Deferred Payment Date; (ii) the Participant’s Termination of Services (other than as a result of the Participant’s death, Disability or Retirement), but only if such Termination of Services qualifies as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) of the Plan with respect to “specified employees”; (iii) the Participant’s death; (iv) the Participant’s Disability; (v) the Scheduled Payment Date if the Participant has a Termination of Services due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below). (f) For purposes of Sections 2(c) and 3(e) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Plan); provided, that, no event shall constitute a “Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5).

Deferred Payment. Notwithstanding Section 2(e2(d) above, the Participant may elect to defer the payment date of his or her vested Restricted Stock Units beyond the Scheduled Payment Date (such elected deferred payment date, the “Deferred Payment Date”), provided, that: (a) In order for a deferral election under this Section 3 to be effective, the Participant must make the election on or prior to the thirtieth (30th) day following the Grant Date. (b) A deferral election made by the Participant pursuant to this Section 3 with respect to one or more of the Participant’s Restricted Stock Units shall, subject to Sections 3(c) and (e) below, defer the payment date of such Restricted Stock Units to the Deferred Payment Date elected by the Participant, which must be one of the following: (i) the third (3rd) anniversary of the Scheduled Payment Date; (ii) the fifth (5th) anniversary of the Scheduled Payment Date; (iii) the seventh (7th) anniversary of the Scheduled Payment Date; (iv) the tenth (10th) anniversary of the Scheduled Payment Date; or (v) the date of the Participant’s Termination of Services which occurs after the Scheduled Payment Date. (c) The Participant shall also be permitted to further defer the payment date of his or her vested Restricted Stock Units beyond the Deferred Payment Date, provided that: (i) in order to be effective, the Participant must make such deferral election at least twelve (12) months prior to the Deferred Payment Date; (ii) a deferral election made by the Participant pursuant to this Section 3(c) shall defer the payment date of his or her vested Restricted Stock Units for a period of time (expressed in whole years) of not less than five (5) years and no more than ten (10) years beyond the Deferred Payment Date; and (iii) the Participant’s deferral election shall not become effective until twelve (12) months after the date on which it is made. The Participant shall be entitled to make more than one deferral election under this Section 3(c) with respect to his or her vested Restricted Stock Units, and any such new Deferred Payment Date election that becomes effective in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is made. (d) The Participant must make any deferral election permitted under this Section 3 in writing on the election form and in accordance with the procedures established by the Company. A deferral election is valid solely with respect to the Restricted Stock Units identified on the election form and must comply with the requirements of this Section 3 to be given effect. Subject to the requirements set forth in this Section 3, the Participant shall be entitled to make deferral elections with respect to all or only a portion of his or her Restricted Stock Units and any such deferral elections need not be the same for all of the Participant’s Restricted Stock Units. (e) If the Participant elects in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date, the payment date of such Restricted Stock Units, to the extent vested, shall occur within the thirty (30) day period following the earliest of the following to occur: (i) the Deferred Payment Date; (ii) the Participant’s Termination of Services (other than as a result of the Participant’s death, Disability death or RetirementDisability), but only if such Termination of Services qualifies as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) of the Plan with respect to “specified employees”; (iii) the Participant’s death; (iv) the Participant’s Disability; or (v) the Scheduled Payment Date if the Participant has a Termination of Services due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below). (f) For purposes of Sections 2(c) and 3(e) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Plan); provided, that, no event shall constitute a “Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5).. Form 11 2/14

Deferred Payment. Notwithstanding Section 2(e2(d) above, the Participant may elect to defer the payment date of his or her vested Restricted Stock Units beyond the Scheduled Payment Date (such elected deferred payment date, the “Deferred Payment Date”), provided, that: (a) In order for a deferral election under this Section 3 to be effective, the Participant must make the election on or prior to the thirtieth (30th) day following the Grant Date. (b) A deferral election made by the Participant pursuant to this Section 3 with respect to one or more of the Participant’s Restricted Stock Units shall, subject to Sections 3(c) and (e) below, defer the payment date of such Restricted Stock Units to the Deferred Payment Date elected by the Participant, which must be one of the following: (i) the third (3rd) anniversary of the Scheduled Payment Date; (ii) the fifth (5th) anniversary of the Scheduled Payment Date; (iii) the seventh (7th) anniversary of the Scheduled Payment Date; (iv) the tenth (10th) anniversary of the Scheduled Payment Date; or (v) the date of the Participant’s Termination of Services which occurs after the Scheduled Payment Date. (c) The Participant shall also be permitted to further defer the payment date of his or her vested Restricted Stock Units beyond the Deferred Payment Date, provided that: (i) in order to be effective, the Participant must make such deferral election at least twelve (12) months prior to the Deferred Payment Date; (ii) a deferral election made by the Participant pursuant to this Section 3(c) shall defer the payment date of his or her vested Restricted Stock Units for a period of time (expressed in whole years) of not less than five (5) years and no more than ten (10) years beyond the Deferred Payment Date; and (iii) the Participant’s deferral election shall not become effective until twelve (12) months after the date on which it is made. The Participant shall be entitled to make more than one deferral election under this Section 3(c) with respect to his or her vested Restricted Stock Units, and any such new Deferred Payment Date election that becomes effective in accordance herewith shall supersede any previous Deferred Payment Date election made by the Participant with respect to such Restricted Stock Units on and after the twelve (12) month anniversary after the election is made.. Form 11 3/10 (d) The Participant must make any deferral election permitted under this Section 3 in writing on the election form and in accordance with the procedures established by the Company. A deferral election is valid solely with respect to the Restricted Stock Units identified on the election form and must comply with the requirements of this Section 3 to be given effect. Subject to the requirements set forth in this Section 3, the Participant shall be entitled to make deferral elections with respect to all or only a portion of his or her Restricted Stock Units and any such deferral elections need not be the same for all of the Participant’s Restricted Stock Units. (e) If the Participant elects in accordance with this Section 3 to defer the date of payment of any of his or her Restricted Stock Units beyond the Scheduled Payment Date, the payment date of such Restricted Stock Units, to the extent vested, shall occur within the thirty (30) day period following the earliest of the following to occur: (i) the Deferred Payment Date; (ii) the Participant’s Termination of Services (other than as a result of the Participant’s death, Disability death or RetirementDisability), but only if such Termination of Services qualifies as a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and the Treasury regulations thereunder and, solely to the extent applicable, subject to the six (6) month delay described in Section 15(h) of the Plan with respect to “specified employees”; (iii) the Participant’s death; (iv) the Participant’s Disability; or (v) the Scheduled Payment Date if the Participant has a Termination of Services due to Retirement; or (vi) a “Section 409A Change of Control” (as defined below). (f) For purposes of Sections 2(c) and 3(e) only, a “Section 409A Change of Control” shall mean a Change in Control (as defined in the Hxxxx Xxxxxx, Inc. Non-Employee Director Deferred Compensation Plan, as amended and restated effective as of January 1, 2005); provided, that, no event shall constitute a “Section 409A Change of Control” for purposes of this Agreement unless such event also qualifies as a “change in control event” for purposes of Treasury Regulation § 1.409A-3(i)(5).