Common use of Internal Revenue Code Section 409A Compliance Clause in Contracts

Internal Revenue Code Section 409A Compliance. (a) General The payments and benefits provided hereunder are intended to be exempt from or compliant with the requirements of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not be construed so as to, create any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to Section 409A of the Code. (b) Exceptions to Apply The Company shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided under this Agreement so that, to the maximum extent possible such payments and benefits are not “nonqualified deferred compensation” subject to Section 409A of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 of the year following the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation in one year shall not affect the amount of payments or expense reimbursements constituting compensation that are eligible for payment or reimbursement in any subsequent year, and Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (d) Specified Employee Notwithstanding anything to the contrary in this Agreement, no compensation or benefits that are “nonqualified deferred compensation” subject to Section 409A of the Code shall be paid to Executive during the 6-month period following his Termination Date to the extent that the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month period.

Internal Revenue Code Section 409A Compliance. (a) General The payments Both you and the Company intend that all compensation or benefits provided hereunder are intended to be exempt from or compliant paid under this letter as well as the Separation Agreement comply with the requirements of Internal Revenue Code Section 409A of and the Code. Notwithstanding any provision of this Agreement to the contraryregulations and guidance promulgated thereunder (collectively “Section 409A”) and, in the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not be construed so as to, create any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to Section 409A of the Code. (b) Exceptions to Apply The Company shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided under this Agreement so thataccordingly, to the maximum extent possible permitted, this letter shall be interpreted to be in compliance therewith. By way of example, and not limitation, with respect to payments triggered by your “termination of employment” (and similar terms) such payments and benefits are not phrase shall be construed to mean your “nonqualified separation from service” with the Company (determined under Treasury Regulation Section 1.409A-1(h)). Further, notwithstanding any other provision of this letter to the contrary, if any amount to be paid to you as a result of the termination of your employment pursuant to this letter or the Separation Agreement is “deferred compensation” subject to Section 409A of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 of the year following the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation in one year shall not affect the amount of payments or expense reimbursements constituting compensation that are eligible for payment or reimbursement in any subsequent year409A, and Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (d) Specified Employee Notwithstanding anything to the contrary in this Agreement, no compensation or benefits that if you are “nonqualified deferred compensation” subject to Section 409A of the Code shall be paid to Executive during the 6-month period following his Termination Date to the extent that the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution (as defined under Section 409A(a)(2)(B)(i409A) as of the Code. If date of your termination of employment hereunder, then, to the extent necessary to avoid the imposition of excise taxes or other penalties under Section 409A, the payment of any such amounts benefits, if any, scheduled to be paid by the Company to you hereunder during the first six (6) month period following the date of a termination of employment hereunder shall not be paid until the date which is delayed as a result of the previous sentence, then on the first business day following the end of such 6six-month period (or such earlier date upon which such amount can anniversary of the termination of your employment for any reason other than death. Any deferred compensation payments delayed in accordance with the terms of this paragraph shall be paid in a lump sum when paid. In addition, both you and the Company agree to cooperate fully with one another to attempt to ensure compliance with Section 409A, including, without limitation, adopting amendments to arrangements subject to Section 409A and operating such arrangements in compliance with Section 409A; provided, however, nothing in this paragraph shall require you to reduce your compensation; provided, further, however, nothing in this letter shall constitute an agreement to indemnify, gross up or otherwise make you whole for any taxes imposed under Section 409A. The Company does not make any representation as to whether any benefits, payments, or reimbursements under this letter satisfy the requirements of Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodor any exemption thereto.

Internal Revenue Code Section 409A Compliance. (a) General The payments Both you and the Company intend that all compensation or benefits provided hereunder are intended to be exempt from or compliant paid under this letter as well as the Separation Agreement comply with the requirements of Internal Revenue Code Section 409A of and the Code. Notwithstanding any provision of this Agreement to the contraryregulations and guidance promulgated thereunder (collectively “Section 409A”) and, in the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not be construed so as to, create any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to Section 409A of the Code. (b) Exceptions to Apply The Company shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided under this Agreement so thataccordingly, to the maximum extent possible permitted, this letter shall be interpreted to be in compliance therewith. By way of example, and not limitation, with respect to payments triggered by your “termination of employment” (and similar terms) such payments and benefits are not phrase shall be construed to mean your “nonqualified separation from service” with the Company (determined under Treasury Regulation Section 1.409A-1(h)). Further, notwithstanding any other provision of this letter to the contrary, if any amount to be paid to you as a result of the termination of your employment pursuant to this letter or the Separation Agreement is “deferred compensation” subject to Section 409A of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 of the year following the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation in one year shall not affect the amount of payments or expense reimbursements constituting compensation that are eligible for payment or reimbursement in any subsequent year409A, and Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (d) Specified Employee Notwithstanding anything to the contrary in this Agreement, no compensation or benefits that if you are “nonqualified deferred compensation” subject to Section 409A of the Code shall be paid to Executive during the 6-month period following his Termination Date to the extent that the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution (as defined under Section 409A(a)(2)(B)(i409A) as of the Code. If date of your termination of employment hereunder, then, to the extent necessary to avoid the imposition of excise taxes or other penalties under Section 409A, the payment of any such amounts benefits, if any, scheduled to be paid by the Company to you hereunder during the first six (6) month period following the date of a termination of employment hereunder shall not be paid until the date which is delayed as a result of the previous sentence, then on the first business day following the end of such 6six-month period (anniversary of the termination of your employment, as reviewed and approved by Employer’s CFO or such earlier date upon which such amount can tax professional, for any reason other than death. Any deferred compensation payments delayed in accordance with the terms of this paragraph shall be paid in a lump sum when paid. In addition, both you and the Company agree to cooperate fully with one another to attempt to ensure compliance with Section 409A, including, without limitation, adopting amendments to arrangements subject to Section 409A and operating such arrangements in compliance with Section 409A; provided, however, nothing in this paragraph shall require you to reduce your compensation; provided, further, however, nothing in this letter shall constitute an agreement to indemnify, gross up or otherwise make you whole for any taxes imposed under Section 409A. The Company does not make any representation as to whether any benefits, payments, or reimbursements under this letter satisfy the requirements of Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodor any exemption thereto.

Internal Revenue Code Section 409A Compliance. (a) General The time and form of payment of any payments and benefits provided hereunder are intended to paid on account of Employee’s termination of employment shall be exempt from or compliant made in accordance with the requirements of Section 409A of the Code. Notwithstanding any provision above terms of this Agreement to the contraryAgreement, in the event provided that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to termination of employment for reasons other than Employee’s death, the payment at such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not time can be construed so characterized as to, create any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to Section 409A of the Code. (b) Exceptions to Apply The Company shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided under this Agreement so that, to the maximum extent possible such payments and benefits are not a “nonqualified deferred compensationshort-term deferral” subject to Section 409A of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code, or as otherwise exempt from the provisions of Code Section 409A as “separation pay,” or if any portion of the payment cannot be so characterized, and Employee is a “specified employee” under Code Section 409A, such portion of the payment shall be delayed until the earlier to occur of Employee’s death or the date that is six (6) months and one day following Employee’s termination of employment (the “Delay Period”). Upon the expiration of the Delay Period, all payments delayed pursuant to this paragraph 15(a) shall be paid or reimbursed to Employee in a lump sum, and any remaining payments due shall be payable at the same time and in the same form as such amounts would have been paid in accordance with their original payment schedule. For purposes of applying the provisions of Code Section 409A, each separately identified amount to which Employee is entitled under this Agreement shall be treated as a separate payment. For purposes of this Agreement, the terms “terminate,” “termination,” “termination of employment,” and variations thereof, as used in this Agreement, are intended to mean a termination of employment that constitutes a “separation from service” under Code Section 409A. (b) The time or schedule of any payment or amount scheduled to be paid pursuant to the terms of this Agreement that provides for the deferral of compensation subject to Code Section 409A, may not be accelerated except as otherwise permitted under Code Section 409A and the guidance and Treasury regulations issued thereunder. (c) Taxable Reimbursements To Whenever a payment under this Agreement specifies a payment period, the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A actual date of the Code, payment within such amounts specified period shall be paid within the sole discretion of Employer, and Employee shall have no right (directly or reimbursed reasonably promptly, but not later than December 31 of the year following indirectly) to determine the year in which such payment is made. In the expense was incurred. The event a payment period straddles two (2) consecutive calendar years, the payment shall be made in the later of such calendar years. (d) Except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a deferral of compensation subject to Code Section 409A, (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to Employee during any payments or expense reimbursements that constitute compensation in one calendar year shall will not affect the amount of payments or expense reimbursements constituting compensation that are expenses eligible for reimbursement or in-kind benefits provided to Employee in any other calendar year, (ii) the reimbursements for expenses for which Employee is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (iii) the right to payment or reimbursement in any subsequent year, and Executive’s right to such payments or reimbursement of any such expenses shall in-kind benefits hereunder may not be subject to liquidation liquidated or exchange exchanged for any other benefit. (de) Specified Employer and Employee Notwithstanding anything intend that this Agreement and the benefits provided hereunder be interpreted and construed to the contrary in this Agreement, no compensation or benefits that are “nonqualified deferred compensation” subject to comply with Code Section 409A of the Code shall be paid to Executive during the 6-month period following his Termination Date to the extent that the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodapplicable thereto.

Internal Revenue Code Section 409A Compliance. (a) General The payments and benefits provided hereunder are intended to be exempt from or compliant with the requirements a. Unless otherwise expressly provided, any payment of Section 409A of the Code. Notwithstanding any provision of this Agreement compensation by Employer to the contraryEmployee, in the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments whether pursuant to this Agreement or adopt such other policies otherwise, shall be made within two and procedures one-half months (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i2 1/2 months) to preserve after the intended tax treatment end of the payments and benefits provided hereunder, to preserve later of the economic benefits with respect calendar year or the Employer’s fiscal year in which the Employee’s right to such payments and benefitspayment vests (i.e., and/or (ii) is not subject to exempt such payments and benefits from a substantial risk of forfeiture for purposes of Internal Revenue Code Section 409A (“Code Section 409A”)). Such amounts shall not be subject to the requirements of subsection (b) below applicable to “nonqualified deferred compensation.” b. All payments of “nonqualified deferred compensation” (within the meaning of Code or Section 409A are intended to comply with the requirements of Code Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not409A, and shall not be construed so as tointerpreted in accordance therewith. No party individually or in combination may accelerate, create any obligation on the part of the Company to adopt offset or assign any such amendmentsdeferred payment, policies or procedures or except in compliance with Code Section 409A. No amount shall be paid prior to take any other such actions or the earliest date on which it is permitted to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to be paid under Code Section 409A of the Code. (b) Exceptions to Apply The Company and Employee shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code have no discretion with respect to the timing of payments except as permitted under Section 409A. In the event that the Employee is determined to be a “specified employee” (as defined and benefits provided determined under this Agreement so thatCode Section 409A) of Employer or any of its affiliates at a time when its stock is deemed to be publicly traded on an established securities market, payments determined to the maximum extent possible such payments and benefits are not be “nonqualified deferred compensation” subject to Section 409A payable by reason of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, such amounts separation from service shall be paid or reimbursed reasonably promptly, but not later no earlier than December 31 (i) the first day of the year following seventh (7th) calendar month commencing after such termination of employment, or (ii) the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation in one year shall not affect the amount of payments or expense reimbursements constituting compensation that are eligible for payment or reimbursement in any subsequent yearEmployee’s death, consistent with and Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (d) Specified Employee Notwithstanding anything to the contrary in this Agreement, no compensation or benefits that are “nonqualified deferred compensation” subject extent necessary to meet the requirements Code Section 409A without the imposition of excise taxes. Any payment delayed by reason of the Code prior sentence shall be paid out in a single lump sum on the earliest date permitted under Code Section 409A in order to Executive during the 6-month period following his Termination Date catch up to the extent that original payment schedule. Notwithstanding anything herein to the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in contrary, no amendment may be made to this Agreement if it would cause the Agreement or any payment hereunder not to be a prohibited distribution under in compliance with Code Section 409A(a)(2)(B)(i) of the Code. If 409A. c. The Employee shall be responsible for the payment of any such amounts all taxes applicable to payments or benefits received from the Employer. It is delayed as a result the intent of the previous sentenceEmployer that the provisions of this Agreement and all other plans and programs sponsored by the Employer be interpreted to comply in all respects with Code Section 409A, then on however, the first business day following Employer shall have no liability to the end of such 6-month period (Employee, or such earlier date upon which such amount can be paid under Section 409A of any successor or beneficiary thereof, in the Code without being subject to such additional event taxes, including as a result of Executive’s death), penalties or excise taxes may ultimately be determined to be applicable to any payment or benefit received by the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodEmployee or any successor or beneficiary thereof.

Internal Revenue Code Section 409A Compliance. (a) General The payments parties agree that this Agreement shall be interpreted to comply with Internal Revenue Code Section 409A and benefits provided hereunder are intended the regulations and guidance promulgated thereunder to the extent applicable (collectively, “Code Section 409A”), and all provisions of this Agreement shall be exempt from or compliant construed in a manner consistent with the requirements of for avoiding taxes or penalties under Code Section 409A. In no event whatsoever will the Company be liable for any additional tax, interest or penalties that may be imposed on Executive under Code Section 409A or any damages for failing to comply therewith. (b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the Code. payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “Separation from Service” (within the meaning of Code Section 409A), and for purposes of this Agreement, references to a “resignation”, “termination”, “termination of employment”, “expiration” or like terms shall mean Separation from Service. (c) Notwithstanding any other provision of this Agreement to the contrary, in if, at the event that time of Executive’s Separation from Service, Executive is a “Specified Employee (as hereinafter defined), then the Company reasonably determines that will defer the payment or commencement of any nonqualified deferred compensation subject to Code Section 409A payable upon Separation from Service (without any reduction in such payments or benefits hereunder are not either exempt ultimately paid or provided to Executive) until the date that is six (6) months following the Separation from or compliant with Service or, if earlier, the requirements of earliest other date as is permitted under Code Section 409A (and any amounts that otherwise would have been paid during this deferral period will be paid in a lump sum on the day after the expiration of the Codesix (6) month period or such shorter period, the Company shall have the right to adopt such amendments to if applicable). Executive will be a “Specified Employee” for purposes of this Agreement or adopt such other policies and procedures (including amendmentsif, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not be construed so as to, create any obligation on the part date of Executive’s Separation from Service, Executive is an individual who is, under the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request method of determination adopted by the Company, take any action (designated as, or refrain from taking any action) required within the category of employees deemed to comply be, a “Specified Employee” within the meaning and in accordance with any correction procedure promulgated pursuant Treasury Regulation Section 1.409A-1(i). The Company shall determine in its sole discretion all matters relating to Section 409A who is a “Specified Employee” and the application and effects of the Codechange in such determination. (bd) Exceptions If, under this Agreement, an amount is to Apply The Company be paid in installments, for purposes of Code Section 409A, each installment shall apply be treated as a separate payment. (e) To the exceptions extent any reimbursement of costs and expenses provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided for under this Agreement so thatconstitutes taxable income to Executive for Federal income tax purposes, to the maximum extent possible all such payments and benefits are not “nonqualified deferred compensation” subject to Section 409A of the Code. All payments and benefits provided under this Agreement reimbursements shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, such amounts shall be paid or reimbursed reasonably promptly, but not no later than December 31 of the calendar year next following the calendar year in which the expense was costs or expenses to be reimbursed are incurred. The amount of any payments or expense reimbursements that constitute compensation in one year shall not affect the amount of payments or expense reimbursements constituting compensation that are eligible for payment or reimbursement in any subsequent year, and Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (df) Specified Employee Notwithstanding anything In the event that the amounts Executive is entitled to receive upon a Separation from Service pursuant to Section 5(c) are subject to the contrary in this Agreementrequirements of Code Section 409A, no compensation or benefits that are “nonqualified deferred compensation” subject then, notwithstanding anything herein to Section 409A the contrary, the first payment of the Code such amounts shall be paid to Executive during made on the 6-month period following his Termination Date to the extent that the Company determines that Executive is a “specified employee” sixtieth (60th) day after Executive’s Separation from Service and that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the shall include payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodbe due prior thereto.

Internal Revenue Code Section 409A Compliance. (a) General The time and form of payment of any payments and benefits provided hereunder are intended to paid on account of Employee’s termination of employment shall be exempt from or compliant made in accordance with the requirements of Section 409A of the Code. Notwithstanding any provision above terms of this Agreement to the contraryAgreement, in the event provided that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to termination of employment for reasons other than Employee’s death, the payment at such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not time can be construed so characterized as to, create any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to Section 409A of the Code. (b) Exceptions to Apply The Company shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided under this Agreement so that, to the maximum extent possible such payments and benefits are not a “nonqualified deferred compensationshort-term deferral” subject to Section 409A of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To , or as otherwise exempt from the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to provisions of Code Section 409A as “separation pay,” or if any portion of the Codepayment cannot be so characterized, and Employee is a “specified employee” under Code Section 409A, such amounts portion of the payment shall be delayed until the earlier to occur of Employee’s death or the date that is six (6) months and one day following Employee’s termination of employment (the “Delay Period”). Upon the expiration of the Delay Period, all payments delayed pursuant to this paragraph 15(a) shall be paid or reimbursed reasonably promptlyto Employee in a lump sum, but and any remaining payments due shall be payable at the same time and in the same form as such amounts would have been paid in accordance with their original payment schedule. For purposes of applying the provisions of Code Section 409A, each separately identified amount to which Employee is entitled under this Agreement shall be treated as a separate payment. For purposes of this Agreement, the terms “terminate,” “termination,” “termination of employment,” and variations thereof, as used in this Agreement, are intended to mean a termination of employment that constitutes a “separation from service” under Code Section 409A. b) The time or schedule of any payment or amount scheduled to be paid pursuant to the terms of this Agreement that provides for the deferral of compensation subject to Code Section 409A, may not later than December 31 be accelerated except as otherwise permitted under Code Section 409A and the guidance and Treasury regulations issued thereunder. ​ c) Whenever a payment under this Agreement specifies a payment period, the actual date of payment within such specified period shall be within the year following sole discretion of Employer, and Employee shall have no right (directly or indirectly) to determine the year in which such payment is made. In the expense was incurred. The event a payment period straddles two (2) consecutive calendar years, the payment shall be made in the later of such calendar years. d) Except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a deferral of compensation subject to Code Section 409A, (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to Employee during any payments or expense reimbursements that constitute compensation in one calendar year shall will not affect the amount of payments or expense reimbursements constituting compensation that are expenses eligible for reimbursement or in-kind benefits provided to Employee in any other calendar year, (ii) the reimbursements for expenses for which Employee is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (iii) the right to payment or reimbursement in any subsequent year, and Executive’s right to such payments or reimbursement of any such expenses shall in-kind benefits hereunder may not be subject to liquidation liquidated or exchange exchanged for any other benefit. (de) Specified Employer and Employee Notwithstanding anything intend that this Agreement and the benefits provided hereunder be interpreted and construed to the contrary in this Agreement, no compensation or benefits that are “nonqualified deferred compensation” subject to comply with Code Section 409A of the Code shall be paid to Executive during the 6-month period following his Termination Date to the extent that the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodapplicable thereto.

Internal Revenue Code Section 409A Compliance. (a) General The payments and benefits provided hereunder are intended to be exempt from or compliant with the requirements a. Unless otherwise expressly provided, any payment of Section 409A of the Code. Notwithstanding any provision of this Agreement compensation by Employer to the contraryEmployee, in the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments whether pursuant to this Agreement or adopt such other policies otherwise, shall be made within two and procedures one-half months (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i2½ months) to preserve after the intended tax treatment end of the payments and benefits provided hereunder, to preserve later of the economic benefits with respect calendar year or the Employer's fiscal year in which the Employee's right to such payments and benefitspayment vests (i.e., and/or (ii) is not subject to exempt such payments and benefits from a substantial risk of forfeiture for purposes of Internal Revenue Code Section 409A (“Code Section 409A”)). Such amounts shall not be subject to the requirements of subsection (b) below applicable to “nonqualified deferred compensation.” b. All payments of “nonqualified deferred compensation” (within the meaning of Code or Section 409A are intended to comply with the requirements of Code Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not409A, and shall not be construed so as tointerpreted in accordance therewith. No party individually or in combination may accelerate, create any obligation on the part of the Company to adopt offset or assign any such amendmentsdeferred payment, policies or procedures or except in compliance with Code Section 409A. No amount shall be paid prior to take any other such actions or the earliest date on which it is permitted to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to be paid under Code Section 409A of the Code. (b) Exceptions to Apply The Company and Employee shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code have no discretion with respect to the timing of payments except as permitted under Section 409A. In the event that the Employee is determined to be a “specified employee” (as defined and benefits provided determined under this Agreement so thatCode Section 409A) of Employer or any of its affiliates at a time when its stock is deemed to be publicly traded on an established securities market, payments determined to the maximum extent possible such payments and benefits are not be “nonqualified deferred compensation” subject to Section 409A payable by reason of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, such amounts separation from service shall be paid or reimbursed reasonably promptly, but not later no earlier than December 31 (i) the first day of the year following seventh (7th) calendar month commencing after such termination of employment, or (ii) the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation in one year shall not affect the amount of payments or expense reimbursements constituting compensation that are eligible for payment or reimbursement in any subsequent yearEmployee's death, consistent with and Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (d) Specified Employee Notwithstanding anything to the contrary in this Agreement, no compensation or benefits that are “nonqualified deferred compensation” subject extent necessary to meet the requirements Code Section 409A without the imposition of excise taxes. Any payment delayed by reason of the Code prior sentence shall be paid out in a single lump sum on the earliest date permitted under Code Section 409A in order to Executive during the 6-month period following his Termination Date catch up to the extent that original payment schedule. Notwithstanding anything herein to the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in contrary, no amendment may be made to this Agreement if it would cause the Agreement or any payment hereunder not to be a prohibited distribution under in compliance with Code Section 409A(a)(2)(B)(i) of the Code. If 409A. c. The Employee shall be responsible for the payment of any such amounts all taxes applicable to payments or benefits received from the Employer. It is delayed as a result the intent of the previous sentenceEmployer that the provisions of this Agreement and all other plans and programs sponsored by the Employer be interpreted to comply in all respects with Code Section 409A, then on however, the first business day following Employer shall have no liability to the end of such 6-month period (Employee, or such earlier date upon which such amount can be paid under Section 409A of any successor or beneficiary thereof, in the Code without being subject to such additional event taxes, including as a result of Executive’s death), penalties or excise taxes may ultimately be determined to be applicable to any payment or benefit received by the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodEmployee or any successor or beneficiary thereof.

Internal Revenue Code Section 409A Compliance. (a) General The payments and benefits provided hereunder are intended to be exempt from or compliant with the requirements a. Unless otherwise expressly provided, any payment of Section 409A of the Code. Notwithstanding any provision of this Agreement compensation by Employer to the contraryEmployee, in the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments whether pursuant to this Agreement or adopt such other policies otherwise, shall be made within two and procedures one-half months (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i2½ months) to preserve after the intended tax treatment end of the payments and benefits provided hereunder, to preserve later of the economic benefits with respect calendar year or the Employer’s fiscal year in which the Employee’s right to such payments and benefitspayment vests (i.e., and/or (ii) is not subject to exempt such payments and benefits from a substantial risk of forfeiture for purposes of Internal Revenue Code Section 409A (“Code Section 409A”)). Such amounts shall not be subject to the requirements of subsection (b) below applicable to “nonqualified deferred compensation.” b. All payments of “nonqualified deferred compensation” (within the meaning of Code or Section 409A are intended to comply with the requirements of Code Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not409A, and shall not be construed so as tointerpreted in accordance therewith. No party individually or in combination may accelerate, create any obligation on the part of the Company to adopt offset or assign any such amendmentsdeferred payment, policies or procedures or except in compliance with Code Section 409A. No amount shall be paid prior to take any other such actions or the earliest date on which it is permitted to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to be paid under Code Section 409A of the Code. (b) Exceptions to Apply The Company and Employee shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code have no discretion with respect to the timing of payments except as permitted under Section 409A. In the event that the Employee is determined to be a “specified employee” (as defined and benefits provided determined under this Agreement so thatCode Section 409A) of Employer or any of its affiliates at a time when its stock is deemed to be publicly traded on an established securities market, payments determined to the maximum extent possible such payments and benefits are not be “nonqualified deferred compensation” subject to Section 409A payable by reason of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, such amounts separation from service shall be paid or reimbursed reasonably promptly, but not later no earlier than December 31 (i) the first day of the year following seventh (7th) calendar month commencing after such termination of employment, or (ii) the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation in one year shall not affect the amount of payments or expense reimbursements constituting compensation that are eligible for payment or reimbursement in any subsequent yearEmployee’s death, consistent with and Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (d) Specified Employee Notwithstanding anything to the contrary in this Agreement, no compensation or benefits that are “nonqualified deferred compensation” subject extent necessary to meet the requirements Code Section 409A without the imposition of excise taxes. Any payment delayed by reason of the Code prior sentence shall be paid out in a single lump sum on the earliest date permitted under Code Section 409A in order to Executive during the 6-month period following his Termination Date catch up to the extent that original payment schedule. Notwithstanding anything herein to the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in contrary, no amendment may be made to this Agreement if it would cause the Agreement or any payment hereunder not to be a prohibited distribution under in compliance with Code Section 409A(a)(2)(B)(i) of the Code. If 409A. c. The Employee shall be responsible for the payment of any such amounts all taxes applicable to payments or benefits received from the Employer. It is delayed as a result the intent of the previous sentenceEmployer that the provisions of this Agreement and all other plans and programs sponsored by the Employer be interpreted to comply in all respects with Code Section 409A, then on however, the first business day following Employer shall have no liability to the end of such 6-month period (Employee, or such earlier date upon which such amount can be paid under Section 409A of any successor or beneficiary thereof, in the Code without being subject to such additional event taxes, including as a result of Executive’s death), penalties or excise taxes may ultimately be determined to be applicable to any payment or benefit received by the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodEmployee or any successor or beneficiary thereof.

Internal Revenue Code Section 409A Compliance. (a) General The payments and benefits provided hereunder are This Agreement is intended to comply with, or otherwise be exempt from or compliant with the requirements of from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect”), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not be construed so as to, create any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to Section 409A of the Code. (b) Exceptions to Apply The Company shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4)undertake to administer, Treasury Regulation Section 1.409A-1(b)(9) interpret, and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided under construe this Agreement so thatin a manner that does not result in the imposition on Jxx of any additional tax, to the maximum extent possible such payments and benefits are not “nonqualified deferred compensation” subject to Section 409A of the Code. All payments and benefits provided penalty, or interest under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To If the Company determines in good faith that any provision of this Agreement would cause Jxx to incur an additional tax, penalty, or interest under Section 409A of the Code, the Company (or its delegate) and Jxx shall use reasonable efforts to reform such provision, if possible, in (i) a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code or causing the imposition of such additional tax, penalty, or interest under Section 409A of the Code or (ii) the manner required by an available IRS correction program that will mitigate or eliminate such additional taxes, penalties or interest.. (d) The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Jxx under this Agreement. Specifically, the Company shall not be liable to Jxx for any additional tax, penalty, or interest under the Code in the event that this Agreement does not comply in form or operation with Section 409A of the Code, or for reporting in good faith any payment made under this Agreement as an amount includible in gross income under Section 409A of the Code, provided the Company makes payments in accordance with the terms of this Agreement or with Section 409A of the Code; provided that the Company shall not be liable to Jxx to the extent that such taxes, penalties or interest arising under Section 409A of the Code (i) could have been avoided pursuant to the provisions set forth in Treasury Regulation §1.409A-3(g), (ii) can be mitigated or eliminated under an available IRS correction program, which the parties agree to utilize in such event, or (iii) or in the case of any early payment, could have been mitigated or avoided if Jxx had promptly notified the Company of such early payment. (e) For purposes of Section 409A of the Code, the right to a series of installment payments or reimbursements provided under this Agreement shall be treated as a right to Executive are deemed a series of separate payments. (f) With respect to constitute “nonqualified deferred compensation” any reimbursement of expenses of Jxx of provision of in-kind benefits to Jxx subject to Section 409A of the Code, such amounts reimbursement of expenses and provision of in-kind benefits shall be paid subject to the following conditions: (1) the expenses eligible for reimbursement or reimbursed reasonably promptly, but not later than December 31 provision of the year following the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation in-kind benefits in one taxable year shall not affect the amount of payments or expense reimbursements constituting compensation that are expenses eligible for payment reimbursement or reimbursement provision of in-kind benefits in any subsequent other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and Executive’s (3) the right to such payments reimbursement or reimbursement provision of any such expenses in-kind benefit shall not be subject to liquidation or exchange for any other another benefit. (dg) Specified Employee Notwithstanding anything Any termination of the Jon’s employment triggering payment of the benefits under Section 2.c. must constitute a “separation from service” under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) before distribution of such benefits can commence. To the extent that the termination of the Jon’s employment does not constitute a separation of service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) (as the result of further services that are reasonably anticipated to be provided by the Jxx to the contrary in this AgreementCompany at the time the Jon’s employment terminates), no any benefits payable under Section 2.c. that constitute deferred compensation or benefits that are “nonqualified deferred compensation” subject to under Section 409A of the Code shall be paid to Executive during delayed until after the 6-month period following his Termination Date to date of a subsequent event constituting a separation of service under Section 409A(a)(2)(A)(i) of the extent that the Company determines that Executive Code and Treas. Reg. §1.409A-1(h). For purposes of clarification, this Section 12.g shall not cause any forfeiture of benefits on Jon’s part, but shall only act as a delay until such time as a “separation from service” occurs. (h) If a payment obligation under this Agreement or other compensation arrangement arises on account of Jon’s separation from service while Jxx is a “specified employee” and that paying such amounts at as determined by the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the Company, any payment of any “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such amounts is delayed as a result of the previous sentence, then separation from service shall accrue without interest and shall be paid on the first business day following after the end of such the six (6-) month period (beginning on the date of such separation from service or, if earlier, on the date of his or such earlier date upon which such amount can be paid under Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s her death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month period.

Internal Revenue Code Section 409A Compliance. (a) General The payments Both you and the Company intend that all compensation or benefits provided hereunder are intended to be exempt from or compliant paid under this letter as well as the Separation Agreement comply with the requirements of Internal Revenue Code Section 409A of and the Code. Notwithstanding any provision of this Agreement to the contraryregulations and guidance promulgated thereunder (collectively “Section 409A”) and, in the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not be construed so as to, create any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to Section 409A of the Code. (b) Exceptions to Apply The Company shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided under this Agreement so thataccordingly, to the maximum extent possible permitted, this letter shall be interpreted to be in compliance therewith. By way of example, and not limitation, with respect to payments triggered by your “termination of employment” (and similar terms) such payments and benefits are not phrase shall be construed to mean your “nonqualified separation from service” with the Company (determined under Treasury Regulation Section 1.409A-1(h)). Further, notwithstanding any other provision of this letter to the contrary, if any amount to be paid to you as a result of the termination of your employment pursuant to this letter or the Separation Agreement is “deferred compensation” subject to Section 409A of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To the extent that any payments or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 of the year following the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation in one year shall not affect the amount of payments or expense reimbursements constituting compensation that are eligible for payment or reimbursement in any subsequent year409A, and Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (d) Specified Employee Notwithstanding anything to the contrary in this Agreement, no compensation or benefits that if you are “nonqualified deferred compensation” subject to Section 409A of the Code shall be paid to Executive during the 6-month period following his Termination Date to the extent that the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution (as defined under Section 409A(a)(2)(B)(i409A) as of the Code. If date of your termination of employment hereunder, then, to the extent necessary to avoid the imposition of excise taxes or other penalties under Section 409A, the payment of any such amounts benefits, if any, scheduled to be paid by the Company to you hereunder during the first six (6) month period following the date of a termination of employment hereunder shall not be paid until the date which is delayed as a result of the previous sentence, then on the first business day following the end of such 6six-month period (or such earlier date upon which such amount can anniversary of the termination of your employment for any reason other than death. Any deferred compensation payments delayed in accordance with the terms of this section shall be paid in a lump sum when paid. In addition, both you and the Company agree to cooperate fully with one another to attempt to ensure compliance with Section 409A, including, without limitation, adopting amendments to arrangements subject to Section 409A and operating such arrangements in compliance with Section 409A; provided, however, nothing in this section shall require you to reduce your compensation; provided, further, however, nothing in this letter shall constitute an agreement to indemnify, gross up or otherwise make you whole for any taxes imposed under Section 409A. The Company does not make any representation as to whether any benefits, payments, or reimbursements under this letter satisfy the requirements of Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodor any exemption thereto.

Internal Revenue Code Section 409A Compliance. (a) General The payments and benefits provided hereunder are This Agreement is intended to be exempt from or compliant comply with the requirements provisions of Section 409A of the Internal Revenue Code (“Code. Notwithstanding any provision of ”), and, to the extent practicable, this Agreement to the contrary, shall be interpreted and administered in the event that the Company reasonably determines a manner so that any payments amount or benefits benefit payable hereunder are not shall be paid or provided in a manner that is either exempt from or compliant with the requirements of Section 409A of the Code, the Company Code and applicable Internal Revenue Service guidance and Treasury Regulations issued thereunder. Terms used in this Agreement shall have the right to adopt meanings given such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from terms under Section 409A of the Code if, and to the extent required, in order to comply with Section 409A of the Code. (b) The payment schedules provided hereunder are intended to be exempt from or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes shall be interpreted consistently therewith: (i) any payments under Sections 5.2 and 5.5 shall be made or interest thereunder; providedshall commence only after Employee has a “separation from service” with Employer, however, that this as defined under Section 25 does not, and shall not be construed so as to, create any obligation on the part 409A of the Company Code and the guidance issued thereunder. (ii) notwithstanding anything to adopt any such amendmentsthe contrary in this Agreement, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) extent required to comply with any correction procedure promulgated pursuant to avoid additional taxes and interest charged under Section 409A of the Code, if any of Employer’s stock is publicly traded and Employee is deemed to be a “specified employee” as determined by Employer for purposes of Section 409A(a)(2)(B) of the Code, Employee agrees that any non-qualified deferred compensation payments due to him under this agreement in connection with a termination of employment that would otherwise have been payable at any time during the six (6)-month period immediately following such termination of employment shall not be paid prior to, and shall instead be payable in a lump sum on the first day of the seventh (7th) month following Employee’s separation from service (or, if Employee dies during such period, within 30 days after Employee’s death). (biii) Exceptions to Apply The Company Each payment of termination benefits under Section 5 of this Agreement, including, without limitation, each installment payment, shall apply the exceptions provided be considered a separate payment, as described in Treasury Regulation Regulations Section 1.409A-1(b)(41.409A-2(b)(2), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided under this Agreement so that, to the maximum extent possible such payments and benefits are not “nonqualified deferred compensation” subject to Section 409A of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (civ) Taxable Reimbursements To Neither Employer nor Employee shall have the extent right to accelerate or defer the delivery of any payment under this Agreement that any payments or reimbursements provided to Executive are deemed to constitute constitutes “nonqualified deferred compensation” subject to Section 409A of the Code, except to the extent specifically permitted or required by Section 409A of the Code. (v) Whenever in this Agreement the provision of payments or benefits is conditioned on Employee’s execution and non-revocation of a release of claims, such amounts release must be executed, and all revocation periods must have expired, within 60 days after the date of termination of Employee’s employment; failing which such payment or benefit shall be forfeited. If such payment or benefit constitutes “nonqualified deferred compensation” under Section 409A of the Code, and if such 60-day period begins in one calendar year and ends in the next calendar year, the payment or benefit shall not be made or commence before the second such calendar year, even if the release becomes irrevocable in the first such calendar year. In other words, Employee is not permitted to influence the calendar year of payment based on the timing of his signing of the release. (vi) If Employee is entitled to be paid or reimbursed reasonably promptlyfor any taxable expenses under this Agreement, but and such payments or reimbursements are includible in Employee’s federal gross taxable income, the amount of such expenses reimbursable in any one calendar year shall not affect the amount reimbursable in any other calendar year, and the reimbursement of an eligible expense must be made no later than December 31 of the year following after the year in which the expense was incurred. The amount No right of any payments or expense reimbursements that constitute compensation in one year shall not affect the amount of payments or expense reimbursements constituting compensation that are eligible for payment or reimbursement in any subsequent year, and Executive’s right Employee to such payments or reimbursement of expenses under Section 4 or any such expenses other Section of this Agreement shall not be subject to liquidation or exchange for any other another benefit. (dvii) Specified Employee Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of Employer. (viii) Notwithstanding anything any other provision of this Agreement to the contrary contrary, in no event shall any payment under this Agreement, no compensation or benefits Agreement that are constitutes “nonqualified deferred compensation” subject to Section 409A of the Code shall be paid subject to offset, counterclaim or recoupment by any other amount payable to Executive during unless otherwise permitted by Section 409A of the 6-month period following his Termination Date to Code. (c) Notwithstanding the foregoing, the tax treatment of the payments and benefits provided under this Agreement is not warranted or guaranteed. To the extent that the Company determines that Executive is a “specified employee” and that paying such amounts at the time or times indicated in this Agreement would or any payment or benefit hereunder shall be a prohibited distribution under deemed not to comply with Section 409A(a)(2)(B)(i) 409A of the Code. If Code neither Employer, nor the payment Board, nor any member of its Compensation Committee, nor any such of their successors shall be liable to Employee or to any other person for any taxes, interest, penalties or other monetary amounts is delayed owed by Employee as a result of the previous sentence, then on the first business day following the end application of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodCode.

Internal Revenue Code Section 409A Compliance. (a) General The payments and benefits provided hereunder are This Agreement is intended to be exempt from or compliant comply with the requirements of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company shall have the right to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not be construed so as to, create extent any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to payment hereunder constitutes nonqualified deferred compensation under Section 409A of the Code. (b) Exceptions to Apply The Company shall apply undertake to administer, interpret, and construe this Agreement in a manner that does not result in the exceptions provided imposition on the Employee of any additional tax, penalty, or interest under Section 409A of the Code and to comply with Code Section 409A to the extent applicable. (c) If the Company determines in Treasury Regulation good faith that any provision of this Agreement would cause the Employee to incur an additional tax, penalty, or interest under Section 1.409A-1(b)(4)409A of the Code, Treasury Regulation Section 1.409A-1(b)(9the Board (or its delegate) and all other the Employee shall use reasonable efforts to reform such provision, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable exceptions or provision without violating the provisions of Section 409A of the Code to or causing the payments and benefits provided imposition of such additional tax, penalty, or interest under this Agreement so that, to the maximum extent possible such payments and benefits are not “nonqualified deferred compensation” subject to Section 409A of the Code. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (cd) Taxable Reimbursements To The preceding provisions, however, shall not be construed as a guarantee by the extent Company of any particular tax effect to the Employee under this Agreement. The Company shall not be liable to the Employee for any payment made under this Agreement that any payments is determined to result in an additional tax, penalty, or reimbursements provided to Executive are deemed to constitute “nonqualified deferred compensation” subject to interest under Section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in gross income under Section 409A of the Code. (e) With respect to any reimbursement of expenses of the Employee, as specified under this Agreement, such amounts reimbursement of expenses shall be paid or reimbursed reasonably promptly, but not later than December 31 of subject to the year following conditions: (1) the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation expenses eligible for reimbursement in one taxable year shall not affect the amount of payments or expense reimbursements constituting compensation that are expenses eligible for payment or reimbursement in any subsequent other taxable year, ; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and Executive’s (3) the right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other another benefit. (df) Specified Employee Notwithstanding anything to the contrary “Termination of employment,” “resignation,” or words of similar import, as used in this AgreementAgreement means, no compensation or benefits for purposes of any payments under this Agreement that are “payments of nonqualified deferred compensation” compensation subject to Section 409A of the Code shall be paid to Executive during Code, the 6-month period following his Termination Date to the extent that the Company determines that Executive is a Employee’s “specified employeeseparation from service” and that paying such amounts at the time or times indicated as defined in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month periodCode.

Internal Revenue Code Section 409A Compliance. (a) General The payments and benefits provided hereunder are a. This Agreement is intended to comply with, or otherwise be exempt from from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). b. The Company shall undertake to administer, interpret, and construe this Agreement in a manner that does not result in the imposition on Executive of any additional tax, penalty, or compliant with interest under Section 409A of the requirements Code. c. If the Company determines in good faith that any provision of this Agreement would cause Executive to incur an additional tax, penalty, or interest under Section 409A of the Code, the Company (or its delegate) and Executive shall use reasonable efforts to reform such provision, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code or causing the imposition of such additional tax, penalty, or interest under Section 409A of the Code. d. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Executive under this Agreement. Notwithstanding The Company shall not be liable to Executive for any provision of payment made under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A of the contraryCode, for any such tax, penalty or interest, or for reporting in good faith any payment made under this Agreement as an amount includible in gross income under Section 409A of the event that the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements Code. e. For purposes of Section 409A of the Code, the Company shall have the right to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment a series of the installment payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes or interest thereunder; provided, however, that this Section 25 does not, and shall not be construed so as to, create any obligation on the part of the Company to adopt any such amendments, policies or procedures or to take any other such actions or to indemnify the Executive for any failure to do so. Executive shall, at the request of the Company, take any action (or refrain from taking any action) required to comply with any correction procedure promulgated pursuant to Section 409A of the Code. (b) Exceptions to Apply The Company shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Section 409A of the Code to the payments and benefits provided under this Agreement so that, to the maximum extent possible such payments and benefits are not “nonqualified deferred compensation” subject to Section 409A of the Code. All payments and benefits provided under this Agreement shall be deemed treated as a right to be separate payments (and any payments made in installments shall be deemed a series of separate payments) and a separately identifiable or designated amount for purposes of Section 409A of the Code. (c) Taxable Reimbursements To the extent that f. With respect to any payments or reimbursements provided reimbursement of expenses of Executive of provision of in-kind benefits to Executive are deemed to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, such amounts reimbursement of expenses and provision of in-kind benefits shall be paid subject to the following conditions: (1) the expenses eligible for reimbursement or reimbursed reasonably promptly, but not later than December 31 provision of the year following the year in which the expense was incurred. The amount of any payments or expense reimbursements that constitute compensation in-kind benefits in one taxable year shall not affect the amount of payments or expense reimbursements constituting compensation that are expenses eligible for payment reimbursement or reimbursement provision of in-kind benefits in any subsequent other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and Executive’s (3) the right to such payments reimbursement or reimbursement provision of any such expenses in-kind benefit shall not be subject to liquidation or exchange for any other another benefit. g. Any termination of the Executive’s employment triggering payment of the benefits under Sections 2.b, 2.d or 4 must constitute a “separation from service” under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) before distribution of such benefits can commence. To the extent that the termination of the Executive’s employment does not constitute a separation of service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) (d) Specified Employee Notwithstanding anything as the result of further services that are reasonably anticipated to be provided by the Executive to the contrary in this AgreementCompany at the time the Executive’s employment terminates), no any benefits payable under Sections 2.b, 2.d or 4 that constitute deferred compensation or benefits that are “nonqualified deferred compensation” subject to under Section 409A of the Code shall be paid to Executive during delayed until after the 6-month period following his Termination Date to date of a subsequent event constituting a separation of service under Section 409A(a)(2)(A)(i) of the extent that Code and Treas. Reg. §1.409A-1(h). For purposes of clarification, this Section 14.g shall not cause any forfeiture of benefits on the Company determines that Executive’s part, but shall only act as a delay until such time as a “separation from service” occurs. h. If a payment obligation under this Agreement or other compensation arrangement arises on account of Executive’s separation from service while Executive is a “specified employee” and that paying such amounts at as determined by the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the Company, any payment of any “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such amounts is delayed as a result of the previous sentence, then separation from service shall accrue without interest and shall be paid on the first business day following after the end of such the six (6-) month period (beginning on the date of such separation from service or, if earlier, on the date of his or such earlier date upon which such amount can be paid under Section 409A of the Code without being subject to such additional taxes, including as a result of Executive’s her death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such 6-month period.