Common use of Delayed Payments Clause in Contracts

Delayed Payments. 1. Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the date of termination of employment to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B) of the Code, then the terms of this Section XII.C. shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on 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 or (b) the date of Executive’s death (the “Delay Period”) to the extent required under Section 409A of the Code. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum by the Company at the end of the Delay Period, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the date of termination of employment Termination Date to be a “specified employee” within the meaning of that term under Section section 409A(a)(2)(B) of the Code, then the terms of this Section XII.C. 9(c) shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section section 409A of the Code. Any payment that is considered deferred compensation under Section section 409A of the Code payable on account of a “separation from service” shall be made on the date which is the earlier of (ay) the expiration of the six (6) month period measured from the date of such “separation from service” of Executive or (bz) the date of Executive’s death (the “Delay Period”) to the extent required under Section section 409A of the Code. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section section 409A of the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the date of termination of employment Termination Date to be a “specified employee” within the meaning of that term under Section section 409A(a)(2)(B) of the Code, then the terms of this Section XII.C. 9(c) shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section section 409A of the Code. Any payment that is considered deferred compensation under Section section 409A of the Code payable on account of a “separation from service” shall be made on the date which is the earlier of (ay) the expiration of the six (6) month period measured from the date of such “separation from service” of Executive or (bz) the date of Executive’s death (the “Delay Period”) to the extent required under Section section 409A of the Code. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section section 409A of the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the date of termination of employment Termination Date to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B) of the Code), then the terms of this Section XII.C. 17.C shall apply as required by Code Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. 409A. Any payment that is considered deferred compensation under Code Section 409A of the Code payable on account of a “separation from service” shall be made on the date which is the earlier of (ay) the expiration of the six (6) month period measured from the date of such “separation from service” of Executive or (bz) the date of Executive’s death (the “Delay Period”) to the extent required under Section 409A of the Code. 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Code Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Code Section 409A of the Code409A, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.

Delayed Payments. 1. Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments anything in this Agreement Section 4 to the contrary, ifif the Company determines in good faith that any payment or benefit under this Section 4, and only if, the that is payable to Executive is deemed on the date account of a termination of employment to be with the Company, constitutes a “deferral of compensation” under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (as set forth in IRS Notice 2005-1, or successor Temporary or Final Treasury Regulations), and that Executive is a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B) 409A(a)(2)(B)(i), then the Company shall delay commencement of any such payment or benefit until six months after the Effective Date of the CodeRelease attached hereto as Exhibit B (as “Effective Date” is defined in the Release) (the “409A Suspension Period”). With respect to any benefits to be provided by the Company (such as continued health care benefits, then if any), Executive shall pay for such benefits directly during the 409A Suspension Period. Within 15 calendar days after the end of the 409A Suspension Period, the Company shall pay to Executive a lump sum payment in cash equal to any payments and benefits (including interest on any such payments and benefits, at an interest rate of not less the prime interest rate, as published in the Wall Street Journal, for the 409A Suspension Period) that the Company would otherwise have been required to provide under this Section 4 but for the imposition of the 409A Suspension Period. Thereafter, Executive shall receive any remaining payments and benefits due under this Section 4 in accordance with the terms of this Section XII.C. shall apply 4 (as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on 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 or (b) the date of Executive’s death (the “Delay Period”) to the extent required under Section 409A of the Code. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have if there had not been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum by the Company at the end of the Delay Period, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified hereinsuspension period).

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the date of termination of employment Termination Date to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B) of the Code), then the terms of this Section XII.C. 17.C shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. 409A. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on the date which is the earlier of (ay) the expiration of the six (6) month period measured from the date of such “separation from service” of Executive or (bz) the date of Executive’s death (the “Delay Period”) to the extent required under Section 409A of the Code. 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of the Code409A, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein. (iii) No amount subject to the delay described in this Section 17.C may be made before the later of (i) 18 months following the date of correction, or (ii) six months following the date of termination of employment.

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the his termination date of termination of employment to be a “specified employee” within the meaning of that term under Section section 409A(a)(2)(B) of the Code, then the terms of this Section XII.C. Subsection shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. 409A. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on the date which that is the earlier of (ay) the expiration of the six (6) month period measured from the date of such “separation from service” of the Executive or (bz) the date of the Executive’s death (the “Delay Period”) to the extent required under and in accordance with Section 409A of the Code. 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and. 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of 409A, the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Executive, to the extent that such costs otherwise would have been are required to be paid by the Company under this Agreement or to the extent that such benefits otherwise would have been are required to be provided by the Company at no cost to the Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.

Delayed Payments. 1. Notwithstanding any other payment schedule provided anything herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only ifto the maximum extent permitted by applicable law, the payments to be made to the Executive pursuant to Section 8 of the Agreement (the “Termination Payments”) shall be made in reliance upon Treasury Regulations promulgated under Section 409A of the IRC, including Section 1.409A-1(b)(9) of the Treasury Regulations (including any exceptions from the application of Section 409A thereunder) or Section 1.409A-1(b)(4) of the Treasury Regulations. For this purpose, each Termination Payment shall be considered a separate and distinct payment for purposes of Section 409A of the IRC. However, to the extent any such payments are treated as non-qualified deferred compensation subject to Section 409A of the IRC, then (a) no amount shall be payable pursuant to Section 8 above unless Executive’s termination of employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the Treasury Regulations and (b) if Executive is deemed on at the date time of termination of employment his separation from service to be a “specified employee” within the meaning for purposes of that term under Section 409A(a)(2)(B409A(a)(2)(B)(i) of the CodeIRC, then to the terms extent delayed commencement of this Section XII.C. shall apply as required by Section 409A any portion of the Code so as Termination Payments to which Executive is entitled under this Agreement is required in order to avoid the imposition of additional tax a prohibited distribution under Section 409A 409A(a)(2)(B)(i) of the Code. Any payment that is considered deferred compensation under Section 409A IRC, such portion of the Code payable on account of a “separation from service” Executive’s Termination Payments shall not be made on the date which is provided to Executive prior to the earlier of (ax) the expiration of the six (6) six-month period measured from the date of such the Executive’s “separation from service” with the Bank (as such term is defined in Section 1.409A-1(h) of Executive the Treasury Regulations) or (by) the date of Executive’s death (death. Upon the “Delay Period”) earlier of such dates, all payments deferred pursuant to this Section 9 shall be paid in a lump sum to the extent required Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein. The determination of whether the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the IRC as of the time of his separation from service shall be made by the Company and the Bank in accordance with the terms of Section 409A of the Code. Upon the expiration IRC and applicable guidance thereunder (including without limitation Section 1.409A-1(i) of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum by the Company at the end of the Delay Period, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, Treasury Regulations and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified hereinsuccessor provision thereto).

Delayed Payments. 1. Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments anything in this Agreement Section 4 to the contrary, ifif the Company determines in good faith that any payment or benefit under this Section 4, and only if, the that is payable to Executive is deemed on the date account of a termination of employment to be with the Company, constitutes a “deferral of compensation” under Code Section 409A (as set forth in IRS Notice 2005-1, or the final regulations issued thereunder by the U.S. Treasury Department (the “Final Regulations”), and that Executive is a “specified employee” within the meaning of that Code Section 409A(a)(2)(B)(i), then the Company shall delay commencement of any such payment or benefit until six months after Executive’s termination of employment with the Company which constitutes a “separation from Service” (as such term under is used in Code Section 409A(a)(2)(B409A) or, if later, the Effective Date of the CodeRelease attached hereto as Exhibit B (as “Effective Date” is defined in the Release) (the “409A Suspension Period”). With respect to any benefits to be provided by the Company (such as continued health care benefits, then if any), if necessary in order to avoid any additional tax or interest under Code Section 409A, Executive shall pay for such benefits directly during the 409A Suspension Period. Within 15 calendar days after the end of the 409A Suspension Period, the Company shall pay to Executive a lump sum payment in cash equal to any payments and benefits (including interest on any such payments and benefits, at an interest rate equal to the 120-month rolling average yield to maturity of the index called the “Xxxxxxx Xxxxx U.S. Corporate, A Rated, 15+ Years Index” as of December 31 of the year preceding the year of termination, for the 409A Suspension Period) that the Company would otherwise have been required to provide under this Section 4 but for the imposition of the 409A Suspension Period. Thereafter, Executive shall receive any remaining payments and benefits due under this Section 4 in accordance with the terms of this Section XII.C. 4 (as if there had not been any suspension period). The provisions of this paragraph shall apply only to the minimum extent required to avoid Executive’s incurrence of any additional tax or interest under Code Section 409A. Executive shall execute the Release which is attached hereto as required by Exhibit B not later than January 15, 2008, so that the lump sum severance payment under Section 4.1(a) above will qualify as a “short-term deferral” that will not be treated as a “deferral of compensation” under Code Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on 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 or (b) the date of Executive’s death (the “Delay Period”) to the extent required under Section 409A of the Code. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum by the Company at the end of the Delay Period, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified hereinFinal Regulations.

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the her termination date of termination of employment to be a “specified employee” within the meaning of that term under Section section 409A(a)(2)(B) of the Code, then the terms of this Section XII.C. Subsection shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. 409A. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on the date which that is the earlier of (ay) the expiration of the six (6) month period measured from the date of such “separation from service” of the Executive or (bz) the date of the Executive’s death (the “Delay Period”) to the extent required under and in accordance with Section 409A of the Code. 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and. 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of 409A, the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Executive, to the extent that such costs otherwise would have been are required to be paid by the Company under this Agreement or to the extent that such benefits otherwise would have been are required to be provided by the Company at no cost to the Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the his termination date of termination of employment to be a “specified employee” within the meaning of that term under Section section 409A(a)(2)(B) of the Code, then the terms of this Section XII.C. Subsection shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. 409A. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on the date which that is the earlier of (ay) the expiration of the six (6) month period measured from the date of such “separation from service” of the Executive or or (bz) the date of the Executive’s death (the “Delay Period”) to the extent required under Section 409A of the Code. 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and. 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of 409A, the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to the Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the his termination date of termination of employment to be a “specified employee” within the meaning of that term under Section section 409A(a)(2)(B) of the Code, then the terms of this Section XII.C. Subsection shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. 409A. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on the date which that is the earlier of (ay) the expiration of the six (6) 504214-1 month period measured from the date of such “separation from service” of the Executive or (bz) the date of the Executive’s death (the “Delay Period”) to the extent required under and in accordance with Section 409A of the Code. 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to the Executive in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and. 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of 409A, the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Executive, to the extent that such costs otherwise would have been are required to be paid by the Company under this Agreement or to the extent that such benefits otherwise would have been are required to be provided by the Company at no cost to the Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.

Delayed Payments. 1. Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments anything in this Agreement Section 4 to the contrary, ifif the Company determines in good faith that any payment or benefit under this Section 4, and only if, the that is payable to Executive is deemed on the date account of a termination of employment to be with the Company, constitutes a “deferral of compensation” under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (as set forth in IRS Notice 2005-1, or successor Temporary or Final Treasury Regulations), and that Executive is a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B) 409A(a)(2)(B)(i), then the Company shall delay commencement of any such payment or benefit until six months after the Effective Date of the CodeRelease attached hereto as Exhibit B (as “Effective Date” is defined in the Release) (the “409A Suspension Period”). With respect to any benefits to be provided by the Company (such as continued health care benefits, then if any), Executive shall pay for such benefits directly during the 409A Suspension Period. Within 15 calendar days after the end of the 409A Suspension Period, the Company shall pay to Executive a lump sum payment in cash equal to any payments and benefits (including interest on any such payments and benefits, at an interest rate of not less the prime interest rate, as published in the Wall Street Journal, for the 409A Suspension Period) that the Company would otherwise have been required to provide under this Section 4 but for the imposition of the 409A Suspension Period. Thereafter, Executive shall receive any remaining payments and benefits due under this Section 4 in accordance with the terms of this Section XII.C. shall apply 4 (as if there had not been any suspension period). I understand that my position with Anda, Inc. (the “Company”) terminated effective (the “Separation Date”). The Company has agreed that if I choose to sign this Release, the Company will, within thirty (30) days after the Effective Date of this Release, pay me certain severance benefits (minus the standard withholdings and deductions) pursuant to the terms of the Key Employee Agreement (the “Agreement”) entered into as of , 2007, between myself and the Company, and any agreements incorporated therein by reference. I understand that I am not entitled to such severance benefits unless I sign this Release. I further understand that, regardless of whether I sign this Release, the Company will pay me all of my accrued salary and paid time off through the Separation Date, to which I am entitled by law. In consideration for the severance benefits I am receiving under the Agreement, I hereby release the Company, its parents, subsidiaries, and affiliates, and their respectiveofficers, directors, agents, attorneys, employees, and shareholders (“Releasees”) from any and all claims, liabilities, demands, causes of action, attorneys’ fees, damages, or obligations of every kind and nature, whether they are now known or unknown, arising at any time prior to the date I sign this Release. This general release includes, but is not limited to: all federal and state statutory and common law claims, claims related to my employment or the termination of my employment or related to breach of contract, tort, wrongful termination, discrimination, harassment, defamation, fraud, wages or benefits, or claims for any form of equity or compensation. Without limiting the foregoing, the above general release includes, but is not limited to, all “wrongful discharge,” “whistleblower” and discrimination claims; all claims relating to any contracts of employment, express or implied; any claims for defamation, misrepresentation or negligence; any claim for wages or severance pay; any tort claim of any nature; any claim under federal, state or municipal statute or ordinance; any claim under any laws or regulations relating to employment matters including, but not limited to, claims under the Age Discrimination in Employment Act of 1967, the California Fair Employment & Housing Act and similar statutes in other jurisdictions, the Civil Rights Act of 1964 and 1991, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Civil False Claim Act, the Florida Civil Rights Act, Florida’s Whistleblower Law, the Florida Human Relations Act, and any amendments thereto. Notwithstanding the release in the preceding sentence, I am not releasing any right of indemnification I may have for any liabilities and costs of defense (including without limitation reasonable attorneys’ fees) arising from my actions within the course and scope of my employment with the Company. In releasing claims unknown to me at present, I am waiving all rights and benefits under Section 1542 of the California Civil Code, and any law or legal principle of similar effect in any jurisdiction: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Because I am forty (40) years of age or older as of the Separation Date, I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the federal Age Discrimination in Employment Act of 1967, as amended (“ADEA”). I also acknowledge that the consideration given for the waiver in the above paragraph is in addition to anything of value to which I was already entitled. I have been advised by this writing, as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on the date which is the earlier of ADEA that: (a) the expiration my waiver and release do not apply to any claims that may arise after my signing of the six (6) month period measured from the date of such “separation from service” of Executive or this Release; (b) the date of Executive’s death I should consult with an attorney prior to executing this Release; (the “Delay Period”c) to the extent required under Section 409A of the Code. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence I have twenty-one (whether they otherwise would have been payable in a single sum or in installments 21) days (forty-five (45) days in the absence event of such delaya group termination) shall within which to consider this Release (although I may choose to voluntarily execute this Release earlier); (d) I have seven (7) days following the execution of this release to revoke the Release; and (e) this Release will not be paid to Executive in a lump sum effective until the eighth day after this Release has been signed both by me and by the Company at the end of the Delay Period, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a (“separation from service,” and such benefits are not otherwise exempt from Section 409A of the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified hereinEffective Date”).

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive is deemed on the date of termination of employment Termination Date to be a “specified employee” within the meaning of that term under Section section 409A(a)(2)(B) of the Code, then the terms of this Section XII.C. 9(c) shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section section 409A of the Code. Any payment that is considered deferred compensation under Section section 409A of the Code payable on account of a “separation from service” shall be made on the date which is the earlier of (ay) the expiration of the six (6) month period measured from the date of such “separation from service” of Executive or (bz) the date of Executive’s death (the “Delay Period”) to the extent required under Section section 409A of the Code. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section section 409A of the Code, Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.

Delayed Payments. 1. (i) Notwithstanding any other payment schedule provided herein or any provision herein regarding the timing of payments in this Agreement to the contrary, if, and only if, the Executive Xxxxxx is deemed on the his termination date of termination of employment to be a “specified employee” within the meaning of that term under Section section 409A(a)(2)(B) of the Code, then the terms of this Section XII.C. Subsection shall apply as required by Section 409A of the Code so as to avoid the imposition of additional tax under Section 409A of the Code. 409A. Any payment that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service” shall be made on the date which that is the earlier of (ay) the expiration of the six (6) month period measured from the date of such “separation from service” of Executive Xxxxxx or (bz) the date of Executive’s Xxxxxx’x death (the “Delay Period”) to the extent required under Section 409A of the Code. 409A. Upon the expiration of the Delay Period, all payments delayed pursuant to the immediately preceding sentence (whether they otherwise would have been payable in a single sum or in installments in the absence of such delay) shall be paid to Executive Xxxxxx in a lump sum by the Company at the end of the Delay PeriodCompany, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and. 2. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Section 409A of the Code provided on account of a “separation from service,” and such benefits are not otherwise exempt from Section 409A of the Code409A, Executive Xxxxxx shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse ExecutiveXxxxxx, to the extent that such costs otherwise would have been paid by the Company or to the extent that such benefits otherwise would have been provided by the Company at no cost to ExecutiveXxxxxx, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein.