Common use of Delayed Payment Date Clause in Contracts

Delayed Payment Date. Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed at the time to be a “specified employee” (determined in accordance with Code Section 409A and Treasury Regulation Section 1.409A-3(i)(2)) and such delayed commencement is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code, no payments or benefits to which the Executive otherwise becomes entitled under this Agreement and that are subject to Code Section 409A shall be made or provided to the Executive prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service” (as such term is defined in Treasury Regulations issued under Code Section 409A) or (ii) the date of the Executive’s death. Upon the expiration of the applicable Code Section 409A(a)(2) deferral period referred to in the preceding sentence, all payments and benefits deferred pursuant to this Section 4(f) (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) 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. Whether the Executive is a “specified employee” shall be determined in accordance with written guidelines adopted by the Company for such purposes and consistent with the Treasury Regulations under Code Section 409A. 11. Section 6 of the Employment Agreement is amended by deleting the fifth sentence of that section and by adding the following new sentences in its place: The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses (“Legal Costs”) which the Executive may reasonably incur during the Executive’s lifetime as a result of any contest by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement). Legal Costs will be paid within 30 days of when they are incurred and in no event later than the last day of the Executive’s taxable year next following the taxable year in which the Legal Costs were incurred. The Company will pay interest on the amount of any Legal Costs that are paid more than 30 days after the date on which such Legal Costs were incurred at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code. The amount of Legal Costs reimbursable for any calendar year will not be affected by the amount reimbursed in any other taxable year, and the Executive’s right to payment of Legal Costs shall not be subject to liquidation or exchange for another benefit. 12. Section 7(b)(iii) of the Employment Agreement is amended to add the following new sentence to the end of that section: In no event shall the level of such consulting services exceed 20% of the average level of services performed by the Executive over the 36-month period immediately preceding the date on which the Executive’s employment terminated (or the full period of services that the Executive performed for the Company if the Executive provided services for fewer than 36 months). 13. Section 8 of the Employment Agreement is amended by adding the following new subsection (f) to the end of that section:

Delayed Payment Date. Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed at the time to be a “specified employee” (determined in accordance with Code Section 409A and Treasury Regulation Section 1.409A-3(i)(2)) and such delayed commencement is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code, no payments or benefits to which the Executive otherwise becomes entitled under this Agreement and that are subject to Code Section 409A shall be made or provided to the Executive prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service” (as such term is defined in Treasury Regulations issued under Code Section 409A) or (ii) the date of the Executive’s death. Upon the expiration of the applicable Code Section 409A(a)(2) deferral period referred to in the preceding sentence, all payments and benefits deferred pursuant to this Section 4(f) (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) 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. Whether the Executive is a “specified employee” shall be determined in accordance with written guidelines adopted by the Company for such purposes and consistent with the Treasury Regulations under Code Section 409A. 1110. Section 6 of the Employment Agreement is amended by deleting the fifth sentence of that section and by adding the following new sentences in its place: The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses (“Legal Costs”) which the Executive may reasonably incur during the Executive’s lifetime as a result of any contest by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement). Legal Costs will be paid within 30 days of when they are incurred and in no event later than the last day of the Executive’s taxable year next following the taxable year in which the Legal Costs were incurred. The Company will pay interest on the amount of any Legal Costs that are paid more than 30 days after the date on which such Legal Costs were incurred at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code. The amount of Legal Costs reimbursable for any calendar year will not be affected by the amount reimbursed in any other taxable year, and the Executive’s right to payment of Legal Costs shall not be subject to liquidation or exchange for another benefit. 1211. Section 7(b)(iii) of the Employment Agreement is amended to add the following new sentence to the end of that section: In no event shall the level of such consulting services exceed 20% of the average level of services performed by the Executive over the 36-month period immediately preceding the date on which the Executive’s employment terminated (or the full period of services that the Executive performed for the Company if the Executive provided services for fewer than 36 months). 1312. Section 8 of the Employment Agreement is amended by adding the following new subsection (f) to the end of that section:

Delayed Payment Date. Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed at the time to be a “specified key employee” (determined in accordance with Code Section 409A and Treasury Regulation Section 1.409A-3(i)(2as defined below)) , and such delayed commencement is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code, no payments or benefits to which the Executive otherwise becomes entitled under this Agreement and that are subject to Code Section 409A of the Code shall be made or provided to the Executive prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service” (as such term is defined in Treasury Regulations issued under Code Section 409A409A of the Code) or (ii) the date of the Executive’s death. Upon the expiration of the applicable Code Section 409A(a)(2) deferral period referred to in the preceding sentence, all payments and benefits deferred pursuant to this Section 4(f) (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) 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. Whether The term “key employee” shall have the same meaning as assigned to that term under Section 416(i) of the Code, without regard to Section 416(i)(5) of the Code, and whether the Executive is a “specified employee” key employee shall be determined in accordance with written guidelines adopted by the Company for such purposes and consistent with the Treasury Regulations under Code Section 409A.purposes. 1112. Section 6 of the Employment Agreement is amended by deleting the fifth sentence of that section and by adding the following new sentences in its place: The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses (“Legal Costs”) which the Executive may reasonably incur during the Executive’s lifetime as a result of any contest by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement). Legal Costs will be paid within 30 days of when they are incurred and in no event later than the last day of the Executive’s taxable year next following the taxable year in which the Legal Costs were incurred. The Company will pay interest on the amount of any Legal Costs that are paid more than 30 days after the date on which such Legal Costs were incurred at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code. The amount of Legal Costs reimbursable for any calendar year will not be affected by the amount reimbursed in any other taxable year, and the Executive’s right to payment of Legal Costs shall not be subject to liquidation or exchange for another benefit. 1213. Section 7(b)(iii) of the Employment Agreement is amended to add the following new sentence to the end of that section: In no event shall the level of such consulting services exceed 20% of the average level of services performed by the Executive over the 36-month period immediately preceding the date on which the Executive’s employment terminated (or the full period of services that the Executive performed for the Company if the Executive provided services for fewer than 36 months). 1314. Section 8 of the Employment Agreement is amended by adding the following new subsection (f) to the end of that section:

Delayed Payment Date. Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed at the time to be a “specified employee” (determined in accordance with Code Section 409A and Treasury Regulation Section 1.409A-3(i)(2)) and such delayed commencement is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code, no payments or benefits to which the Executive otherwise becomes entitled under this Agreement and that are subject to Code Section 409A shall be made or provided to the Executive prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service” (as such term is defined in Treasury Regulations issued under Code Section 409A) or (ii) the date of the Executive’s death. Upon the expiration of the applicable Code Section 409A(a)(2) deferral period referred to in the preceding sentence, all payments and benefits deferred pursuant to this Section 4(f) (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) 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. Whether the Executive is a “specified employee” shall be determined in accordance with written guidelines adopted by the Company for such purposes and consistent with the Treasury Regulations under Code Section 409A. 1112. Section 6 of the Employment Agreement is amended by deleting [the fifth sentence sentence] of that section and by adding the following new sentences in its place: The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses (“Legal Costs”) which the Executive may reasonably incur during the Executive’s lifetime as a result of any contest by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement). Legal Costs will be paid within 30 days of when they are incurred and in no event later than the last day of the Executive’s taxable year next following the taxable year in which the Legal Costs were incurred. The Company will pay interest on the amount of any Legal Costs that are paid more than 30 days after the date on which such Legal Costs were incurred at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code. The amount of Legal Costs reimbursable for any calendar year will not be affected by the amount reimbursed in any other taxable year, and the Executive’s right to payment of Legal Costs shall not be subject to liquidation or exchange for another benefit. 1213. Section 7(b)(iii) of the Employment Agreement is amended to add the following new sentence to the end of that section: In no event shall the level of such consulting services exceed 20% of the average level of services performed by the Executive over the 36-month period immediately preceding the date on which the Executive’s employment terminated (or the full period of services that the Executive performed for the Company if the Executive provided services for fewer than 36 months). 1314. Section 8 of the Employment Agreement is amended by adding the following new subsection (f) to the end of that section:

Delayed Payment Date. Notwithstanding any provision to the contrary in this Agreement, if the Executive Employee is deemed at the time to be a “specified key employee” (determined in accordance with within the meaning of that term under Internal Revenue Code Section 409A and Treasury Regulation Section 1.409A-3(i)(2)416(i) and such delayed commencement is otherwise required in order to avoid a prohibited distribution under Internal Revenue Code Section 409A(a)(2) of the Code), no payments or benefits to which the Executive Employee otherwise becomes entitled under this Agreement and that are subject to Code Section 409A shall be made or provided to the Executive Employee prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the ExecutiveEmployee’s “separation from service” (as such term is defined in Treasury Regulations issued under Internal Revenue Code Section 409A) or (ii) the date of the ExecutiveEmployee’s death. Upon the expiration of the applicable Internal Revenue Code Section 409A(a)(2) deferral period referred to in the preceding sentence, all payments and benefits deferred pursuant to this Section 4(f) 16 (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) shall be paid or reimbursed to the Executive Employee 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.” 2. Whether the Executive is a “specified employee” shall be determined in accordance with written guidelines adopted by the Company for such purposes and consistent with the Treasury Regulations under Code Section 409A. 11. Section 6 All provisions of the Employment Agreement is amended by deleting the fifth sentence of that section and by adding the following new sentences in its place: The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses (“Legal Costs”) which the Executive may reasonably incur during the Executive’s lifetime as a result of any contest by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement). Legal Costs will be paid within 30 days of when they are incurred and in no event later than the last day of the Executive’s taxable year next following the taxable year in which the Legal Costs were incurred. The Company will pay interest on the amount of any Legal Costs that are paid more than 30 days after the date on which such Legal Costs were incurred at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code. The amount of Legal Costs reimbursable for any calendar year will not be affected by this Amendment shall remain in full force and effect and shall continue to be binding obligations of both parties hereto. Capitalized terms used in this Amendment but not defined herein shall have the amount reimbursed meanings assigned thereto in the Employment Agreement. 3. This Amendment may be executed in any other taxable yearnumber of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the Executive’s right to payment of Legal Costs shall not be subject to liquidation or exchange for another benefitsame instrument. 12. Section 7(b)(iii) of the Employment Agreement is amended to add the following new sentence to the end of that section: In no event shall the level of such consulting services exceed 20% of the average level of services performed by the Executive over the 36-month period immediately preceding the date on which the Executive’s employment terminated (or the full period of services that the Executive performed for the Company if the Executive provided services for fewer than 36 months). 13. Section 8 of the Employment Agreement is amended by adding the following new subsection (f) to the end of that section:

Delayed Payment Date. Notwithstanding any provision to the contrary in this Agreement, (i) if the Executive is deemed at the time of his or her termination of employment to be a “key employee” within the meaning of that term under Code Section 416(i) (as used for purposes of defining a “specified employee” (determined in accordance with Code under Section 409A and Treasury Regulation Section 1.409A-3(i)(2)of the Code) and such delayed commencement payment of an amount that is otherwise payable to or on behalf of Executive in connection with a termination of employment is required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code, no payments or benefits to which the Executive otherwise becomes entitled under this Agreement and that are subject to Code Section 409A such amount shall be made or provided to the or paid on behalf of Executive prior to the earlier of (ix) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service” (as such term is defined in Treasury Regulations issued under Code Section 409A) or (iiy) the date of the Executive’s death. Upon ; provided however, upon the expiration of the applicable Code Section 409A(a)(2) deferral delay period referred to in the preceding sentenceherein, all payments and benefits deferred amounts delayed pursuant to this Section 4(f) (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) 6 shall be promptly paid to or reimbursed to the on behalf of Executive in a lump sum, ; and (ii) if any remaining other payments and of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under this Agreement Section 409A of the Code, such payments or other benefits shall be paid deferred if deferral will make such payment or provided other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in accordance with a manner, determined by the normal payment dates specified for them hereinCompany, that does not cause such an accelerated or additional tax. Whether the an Executive is a “specified key employee” for purposes of this Section 5 shall be determined in accordance with the written guidelines adopted by the Company for making such purposes and consistent with the Treasury Regulations under Code Section 409A. 11determinations. Section 6 of the Employment Agreement is amended by deleting the fifth sentence of The parties do not expect that section and by adding the following new sentences in its place: The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses (“Legal Costs”) which the Executive may reasonably incur during the Executive’s lifetime as a result of any contest by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement). Legal Costs will be paid within 30 days of when they are incurred and in no event later than the last day of the Executive’s taxable year next following the taxable year in which the Legal Costs were incurred. The Company will pay interest a specified employee on the amount date of any Legal Costs that are paid more than 30 days after the date on which such Legal Costs were incurred at the applicable Federal rate provided for in Section 7872(f)(2)(A) his expected termination of the Code. The amount of Legal Costs reimbursable for any calendar year will not be affected by the amount reimbursed in any other taxable year, and the Executive’s right to payment of Legal Costs shall not be subject to liquidation or exchange for another benefitemployment. 12. Section 7(b)(iii) of the Employment Agreement is amended to add the following new sentence to the end of that section: In no event shall the level of such consulting services exceed 20% of the average level of services performed by the Executive over the 36-month period immediately preceding the date on which the Executive’s employment terminated (or the full period of services that the Executive performed for the Company if the Executive provided services for fewer than 36 months). 13. Section 8 of the Employment Agreement is amended by adding the following new subsection (f) to the end of that section: