Common use of Section 409A of the Code Clause in Contracts

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A and Section 4(c) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service.409A. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(e) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vii), are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this This Award Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided409A of the Code and the regulations thereunder, howeverand the provisions of this Award Agreement shall be interpreted in a manner that satisfies the requirements of Section 409A of the Code, and this Award Agreement shall be operated accordingly. If any provision of this Award Agreement or any term or condition of the PSUs would otherwise conflict with this intent, the provision, term or condition shall be interpreted and deemed amended so as to avoid this conflict. Notwithstanding anything else in this Award Agreement, if the Board considers a Participant to be a “specified employee” under Section 409A of the Code at the time of such Participant’s “separation from service” (as defined in Section 409A of the Code), and the amount hereunder is “deferred compensation” subject to Section 409A of the Code any distribution that this Section 11(d) otherwise would be made to such Participant with respect to PSUs as a result of such separation from service shall not create an obligation on be made until the part date that is six months after such separation from service, except to the extent that earlier distribution would not result in such Participant’s incurring interest or additional tax under Section 409A of the Company to adopt any such amendmentCode. If the Award includes a “series of installment payments” (within the meaning of Section 1.409A-2(b)(2)(iii) of the Treasury Regulations), policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any Participants’ right to a the series of installment payments pursuant to this Agreement is to shall be treated as a right to a series of separate paymentspayments and not as a right to a single payment. To Notwithstanding the extent permitted under Section 409Aforegoing, any separate payment or benefit the tax treatment of the benefits provided under this Award Agreement is not warranted or otherwise guaranteed, and in no event shall not the Company be deemed “nonqualified deferred compensation” subject to liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitCode.

Section 409A of the Code. (i) To the extent applicable, this This Award Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided409A of the Code and the regulations thereunder, howeverand the provisions of this Award Agreement shall be interpreted in a manner that satisfies the requirements of Section 409A of the Code, and this Award Agreement shall be operated accordingly. If any provision of this Award Agreement or any term or condition of the RSUs would otherwise conflict with this intent, the provision, term or condition shall be interpreted and deemed amended so as to avoid this conflict. Notwithstanding anything else in this Award Agreement, if the Board considers a Participant to be a “specified employee” under Section 409A of the Code at the time of such Participant’s “separation from service” (as defined in Section 409A of the Code), and the amount hereunder is “deferred compensation” subject to Section 409A of the Code any distribution that this Section 11(d) otherwise would be made to such Participant with respect to RSUs as a result of such separation from service shall not create an obligation on be made until the part date that is six months after such separation from service, except to the extent that earlier distribution would not result in such Participant’s incurring interest or additional tax under Section 409A of the Company to adopt any such amendmentCode. If the Award includes a “series of installment payments” (within the meaning of Section 1.409A-2(b)(2)(iii) of the Treasury Regulations), policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any Participants’ right to a the series of installment payments pursuant to this Agreement is to shall be treated as a right to a series of separate paymentspayments and not as a right to a single payment. To Notwithstanding the extent permitted under Section 409Aforegoing, any separate payment or benefit the tax treatment of the benefits provided under this Award Agreement is not warranted or otherwise guaranteed, and in no event shall not the Company be deemed “nonqualified deferred compensation” subject to liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitCode.

Section 409A of the Code. (ia) To This Agreement is intended to meet the extent requirements of the “short-term deferral exception,” “separation pay exception” and other exceptions under section 409A of the Code, as applicable. However, if the Employee is a Key Employee and if required by section 409A of the Code, no payments or benefits under this Agreement shall be interpreted paid to the Employee during the Postponement Period. If payment is required to be delayed for the Postponement Period pursuant to section 409A, the accumulated amounts withheld on account of section 409A, with interest as described in accordance Section 6 above, shall be paid in a lump sum payment within 15 days after the end of the Postponement Period. If the Employee dies during the Postponement Period prior to the payment of benefits, the amounts withheld on account of section 409A, with Section 409A. interest as described above, shall be paid to the Employee’s estate within 60 days after the Employee’s death. (b) Notwithstanding any provision of anything in this Agreement to the contrary, if the Company determines that any compensation or benefits payable required by section 409A, payments may only be made under this Agreement may be subject to Section upon an event and in a manner permitted by section 409A, to the extent applicable. As used in the Agreement, the term “termination of employment” shall mean the Employee’s separation from service with the Company shall work in good faith with and its Subsidiaries and Affiliates within the Executive to adopt such amendments to this Agreement or adopt other policies meaning of section 409A and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition regulations promulgated thereunder. For purposes of taxes under Section section 409A, including without limitation, actions intended to (i) exempt each payment under the compensation and benefits Agreement shall be treated as a separate payment. In no event may the Employee designate the year of payment for any amounts payable under this the Agreement. All reimbursements and in-kind benefits provided under the Agreement from Section 409A, and/or (ii) comply shall be made or provided in accordance with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part section 409A of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do soCode. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (ia) The payments and benefits under this Agreement are intended to be exempt from the application of Section 409A of the Code. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury Regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any such compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith may, with the Executive to Executive’s prior written consent, adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code and/or preserve the intended tax treatment of such compensation and benefits, and/or or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do soCode and related Department of Treasury guidance. (iib) Any right Notwithstanding anything to a series of installment payments pursuant the contrary in this Agreement, no payment or benefits, including without limitation the amount payable under Section 3 hereof, shall be paid to the Executive during the six (6) month period following the Executive’s Separation from Service if the Company determines that paying such amount 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 amount is to be treated delayed as a right result of the previous sentence, then on the first business day following the end of such six (6) month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of the Executive’s death), the Company shall pay the Executive a lump-sum amount equal to a series of separate payments. the cumulative amount that would have otherwise been payable to the Executive during such period. (c) To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A and the six (6) month delay requirement under 409A(a)(2)(B)(i) of the Code to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iiid) To the extent that any payments reimbursements or reimbursements corresponding in-kind benefits provided to the Executive under this Agreement Agreement, including, without limitation under Section 2 or Section 11 hereof, are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would applyExecutive, 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 such payments eligible for reimbursement or expense reimbursements in one year shall not affect the payments expenses or expenses that are in-kind benefits eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. The parties have carefully read this Agreement in its entirety; fully understand and agree to its terms and provisions; and intend and agree that it is final and binding on all parties.

Section 409A of the Code. If the Employee is deemed a "specified employee" within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Employee becomes eligible for settlement of the Restricted Stock Units upon his/her "separation from service" within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to date that is six months following the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies Employee's separation from service and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) the Employee's death. It is the intent that this Restricted Stock Unit Award shall comply with the requirements of Section 409A, and any ambiguities herein will be interpreted to so comply. The Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify this Agreement as may be necessary to ensure that all vesting or payouts provided under this Agreement are made in a manner that complies with Section 409A or to mitigate any additional tax, interest and/or penalties or other adverse tax consequences that may apply under Section 409A if compliance is not practical; provided, however, that nothing in this Section 11(d) shall not create paragraph creates an obligation on the part of the Company to adopt any such amendmentmodify the terms of this Agreement or the Plan, policy and the Company makes no representation that the terms of this Restricted Stock Unit Award Agreement will comply with Section 409A or procedure that payments under this Restricted Stock Unit Award Agreement will not be subject to taxes, interest and penalties or take any such other action, nor adverse tax consequences under Section 409A. In no event shall the Company have or any liability of its Subsidiaries be liable to any party for any additional tax, interest or penalties that may be imposed on the Employee by Section 409A or any damages for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.409A.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (iA) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (iiB) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d12(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vi), are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) a. To the extent applicablethat the Award is construed to be nonqualified deferred compensation subject to Section 409A of the Code, the Company shall use its reasonable efforts to operate, administer, construe and interpret this Agreement in a manner that minimizes adverse tax consequences to the Participant and is consistent with the requirements of Section 409A of the Code. Any payments that qualify for the “short-term deferral” exception or another exception under Section 409A of the Code shall be paid under the applicable exception. Each payment of compensation under this Agreement shall be interpreted in accordance with Section 409A. treated as a separate payment of compensation. In no event may the Participant, directly or indirectly, designate the calendar year of any payment or distribution under this Agreement. Notwithstanding any other provision of the Plan or this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Participant is a “specified employee” within the meaning of Section 409A, 409A of the Company shall work Code (as determined in good faith accordance with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effectmethodology established by the Company), or take any other actions, amounts that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed constitute “nonqualified deferred compensation” subject to Section 409A of the Code that would otherwise be payable by reason of the Participant's Termination of Service during the six (6)-month period immediately following such Termination of Service shall instead be paid or provided on the first business day following the date that is six (6) months following the Participant’s Termination of Service. If the Participant dies following the Termination of Service and prior to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or payment of any other applicable exception or provision amounts delayed on account of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would applyCode, such amounts shall be paid to the designated beneficiary of the Participant pursuant to Section 13(f) of the Plan within forty-five (45) days following the date of the Participant's death. b. This Agreement shall be subject to amendment, with or reimbursed reasonably promptlywithout advance notice to the Participant, and on a prospective or retroactive basis, including, but not later than December 31 limited to, amendment in a manner that adversely affects the rights of the year following Participant, to the year extent necessary to effect compliance with Section 409A of the Code. Notwithstanding anything contained in which this Agreement or the expense was incurred. The amount Plan, the Company shall have no liability whatsoever for or in respect of any decision to take action to attempt to comply with Section 409A of the Code, any omission to take such action or for the failure of any such payments eligible for reimbursement in one year shall not affect action taken by the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right Company to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitso comply.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d12(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon Employee’s “separation from service” from the Executive’s Company (within the meaning of Section 409A, a “Separation from Service”). (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vii) hereof, are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (ia) To Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent applicable, any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be interpreted payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. (b) The parties intend that this Agreement will be administered in accordance with Section 409A. Notwithstanding 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the contraryCode, if the Company determines provision shall be read in such a manner so that any compensation or benefits payable under all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be subject amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A, 409A of the Company shall work Code and all related rules and regulations in good faith with order to preserve the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation payments and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company provided hereunder without additional cost to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do soeither party. (iic) Any right to The determination of whether and when a series of installment payments pursuant to this Agreement is to separation from service has occurred shall be treated as a right to a series of separate payments. To made in accordance with the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions presumptions set forth in Treasury Regulation Section 1.409A-1(b)(41.409A-1(h), Section 1.409A-1(b)(9. (d) The Company makes no representation or warranty and shall have no liability to the Executive or any other applicable exception or provision person if any provisions of Section 409A. Any payments subject this Agreement are determined to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified constitute deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode but do not satisfy an exemption from, or the conditions of, such Section. (iiie) To the extent that any payments or reimbursements provided Notwithstanding anything herein to the Executive under contrary, no event shall constitute a “termination of employment” in this Agreement are deemed to constitute compensation to Agreement, unless such event is also a “separation from service,” as that term is defined for purposes of Section 409A of the Executive to which Internal Revenue Code of 1986, as amended (“Code”), and Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit§1.409A-3(a)(1).

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d12(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service.409A. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. The intent of the parties hereto is that payments and benefits under this Agreement comply with Section 409A of the Code and the regulations and other guidance promulgated thereunder (i) To “Section 409A”), to the extent applicablesubject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in accordance with Section 409A. compliance therewith. Notwithstanding any provision of this Agreement anything herein to the contrary: (a) if at the time of the Executive’s termination of employment with First Financial, if the Company determines that Executive is a “specified employee” as defined in Section 409A and the deferral of the commencement of any compensation payments or benefits otherwise payable under this Agreement may be subject or provided hereunder as a result of such termination of employment is necessary in order to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement prevent any accelerated or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes additional tax under Section 409A, including without limitation, actions intended to (i) exempt then the compensation payment of any such payments or benefits shall be delayed and benefits payable under this Agreement from Section 409A, and/or (ii) comply paid on the first business day of the seventh month following the Executive’s termination of employment with First Financial in accordance with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on 409A (or the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement earliest date as is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A); (b) if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Section 409A, any separate such payments or other benefits shall be deferred if deferral will make such payment or benefit other benefits compliant under this Agreement Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board that does not cause such an accelerated or additional tax; (c) to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, the Executive shall not be deemed “nonqualified deferred compensation” subject considered to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision have terminated employment with First Financial for purposes of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only and no payment shall be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided due to the Executive under this Agreement are deemed until the Executive would be considered to constitute compensation have incurred a “separation from service” from First Financial within the meaning of Section 409A; and (d) each amount to be paid or benefit to be provided to the Executive pursuant to this Agreement, which Treasury Regulation constitute deferred compensation subject to Section 1.409A-3(i)(1)(iv) would apply409A, such shall be construed as a separate identified payment for purposes of Section 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, amounts reimbursable to the Executive under this Agreement shall be paid to the Executive on or reimbursed reasonably promptly, but not later than December 31 before the last day of the year following the year in which the expense was incurred. The , the amount of any such payments expenses eligible for reimbursement in (and in-kind benefits provided to the Executive) during any one year shall may not affect the payments effect amounts reimbursable or expenses that are eligible for payment or reimbursement provided in any other taxable year, subsequent year and the Executive’s in no event shall any right to such payments reimbursement or reimbursement receipt of any such expenses shall not in-kind benefits be subject to liquidation or exchange for another benefit; provided, however, that with respect to any other benefitreimbursements for any taxes which the Executive would become entitled to under the terms of this Agreement, the payment of such reimbursements shall be made by First Financial no later than the end of the calendar year following the calendar year in which the Executive remits the related taxes. First Financial shall consult with the Executive in good faith regarding the implementation of the provisions of this Section 14.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. Each series of installment payments made under this Agreement is hereby designated as a series of “separate payments” within the meaning of Section 409A of the Code. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(e) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vi), are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To Notwithstanding the extent applicableother provisions hereof, this Performance Based Restricted Stock Unit Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt any such amendmentCode, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4)applicable, Section 1.409A-1(b)(9) or and this Performance Based Restricted Stock Unit Agreement shall be interpreted to avoid any other applicable exception or provision of Section 409A. Any payments subject to penalty sanctions under Section 409A that are subject to execution of a waiver the Code. Accordingly, all provisions herein, or incorporated by reference, shall be construed and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary interpreted to comply with Section 409A. All payments 409A of nonqualified the Code and, if necessary, any such provision shall be deemed amended to comply with Section 409A of the Code and regulations thereunder. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A of the Code, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. Any amount payable under this Agreement that constitutes deferred compensation subject to Section 409A of the Code shall be paid at the time provided under this Agreement or such other time as permitted under Section 409A of the Code. No interest will be payable with respect to any amount paid within a time period permitted by, or delayed because of, Section 409A of the Code. All payments to be made upon a termination of employment under this Agreement that are deferred compensation may only be made upon a “separation from service” under Section 409A of the Executive’s Separation from Service. (iii) To Code. For purposes of Section 409A of the extent that any payments or reimbursements provided to the Executive Code, each payment made under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid treated as a separate payment. In no event may Participant directly or reimbursed reasonably promptlyindirectly, but not later than December 31 designate the calendar year of payment. Notwithstanding the foregoing, in no event whatsoever shall the Company be liable for any additional tax, interest, income inclusion or other penalty that may be imposed on a Participant by Code Section 409A or for damages for failing to comply with Code Section 409A unless such failure is a result of the year following Company’s breach of this Plan or the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitPerformance Based Restricted Stock Unit Agreement.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d13(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To It is the intention of both the Company and Employee that the benefits and rights to which Employee could be entitled pursuant to this Agreement be exempt from, or comply with, Section 409A of the Code and the Treasury Regulations and other guidance promulgated or issued thereunder, to the extent applicablethat the requirements of Section 409A of the Code are applicable thereto, and this Agreement shall be interpreted construed in accordance a manner consistent with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if that intention. If Employee or the Company determines believes, at any time, that any compensation such benefit or benefits payable under this Agreement may be right that is subject to Section 409A409A of the Code does not so comply, it shall promptly advise the Company other and shall work negotiate reasonably and in good faith to amend the terms of such benefits and rights such that they comply with Section 409A of the Code (with the Executive to adopt such amendments to this Agreement or adopt other policies most limited possible economic effect on Employee and procedures (including amendments, policies and procedures with retroactive effecton the Company), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, for the avoidance of doubt, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor in no event whatsoever shall the Company have be liable for any liability additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to do so. (ii) Any right to comply with Code Section 409A. In the event that Employee receives any payments under this Agreement in the form of a series of installment payments, such payments pursuant to this Agreement is to shall be treated as a right to a series of separate payments. To , and in accordance with Treasury Regulation 1.409A-1(b)(9)(iii), as amended, all or a portion of such payments shall qualify as separation pay under the aforementioned regulation to the extent permitted under the requirements of such regulation are met. If and to the extent required to comply with Section 409A409A of the Code, any separate payment or benefit required to be paid hereunder on account of termination of Employee’s employment or service (or any other similar term) shall be made only in connection with a “separation from service” with respect to Employee within the meaning of Section 409A of the Code. Notwithstanding any other provision of this Agreement, in the event Employee is treated as a “specified employee” under Section 409A of the Code (and under the terms and conditions of the Company’s Specified Employee Policy) and any payment under this Agreement or otherwise is treated as a nonqualified deferred compensation payment under Section 409A of the Code, then payment of such amounts shall be delayed for six (6) months and a day following the effective date of Employee’s termination of employment, at which time a lump sum payment shall be made to Employee consisting of the sum of the delayed payments. This provision shall not be deemed “apply in the event of a specified employee’s termination of employment on account of death and, in the event of a specified employee’s death during the aforementioned six- (6)-month and a day period, such nonqualified deferred compensation” compensation may be paid at any time on or after such specified employee’s death. Neither the Company nor Employee, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A to of the extent provided Code, except in compliance with Section 409A of the exceptions in Treasury Regulation Section 1.409A-1(b)(4)Code and this Agreement, Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments and no amount that is subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts Code shall be paid or reimbursed reasonably promptly, but not later than December 31 prior to the earliest date on which it may be paid without violating Section 409A of the year following the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitCode.

Section 409A of the Code. (i) To It is intended that the extent applicableprovisions of this Agreement comply with Section 409A of the Code, and all provisions of this Agreement shall be construed and interpreted in accordance a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Notwithstanding any provision 409A of this Agreement to the contraryCode. If, if at the time of your separation from service (within the meaning of Section 409A of the Code), (a) you shall be a specified employee (within the meaning of Section 409A of the Code and using the identification methodology selected by the Company determines from time to time) and (b) the Company shall make a good faith determination that any compensation or benefits an amount payable under this Agreement may or any other plan, policy, arrangement or agreement of or with the Company or Xxxxxx & Xxxxx Education, Inc. (this Agreement and such other plans, policies, arrangements and agreements, the “Company Plans”) constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of which is required to be subject delayed pursuant to the six-month delay rule set forth in Section 409A409A of the Code in order to avoid taxes or penalties under Section 409A of the Code, then the Company shall work in good faith with not pay any such amount on the Executive otherwise scheduled payment date but shall instead accumulate such amount and pay it, without interest, on the first day of the seventh month following such separation from service. Except as permitted under Section 409A of the Code, any deferred compensation (within the meaning of Section 409A of the Code) payable to adopt such amendments or for your benefit under any Company Plan may not be reduced by, or offset against, any amount owing by you to the Company. Except as specifically permitted by Section 409A of the Code, the benefits and reimbursements provided to you under this Agreement and any Company Plan during any calendar year shall not affect the benefits and reimbursements to be provided to you under the relevant section of this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take Company Plan in any other actionscalendar year, that and the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall such benefits and reimbursements cannot be deemed “nonqualified deferred compensation” subject to Section 409A to the extent liquidated or exchanged for any other benefit and shall be provided in the exceptions in Treasury Regulation accordance with Treas. Reg. Section 1.409A-1(b)(4), Section 1.409A-1(b)(91.409A-3(i)(1)(iv) or any other applicable exception successor thereto. Further, in the case of reimbursement payments, such payments shall be made to you on or provision before the last day of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a the calendar year following the calendar year in which the payment event (such as termination underlying fee, cost or expense is incurred. Notwithstanding the preceding, the Company makes no representations concerning the tax consequences of employment) occurs shall commence payment only your participation in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to this Agreement under Section 409A to be made upon a termination of employment under this Agreement may only be made the Code or any other Federal, state or local tax law. Your tax consequences shall depend, in part, upon the Executive’s Separation from Service. (iii) To application of relevant tax law, including Section 409A of the extent that any payments or reimbursements provided Code, to the Executive under relevant facts and circumstances. You should consult a competent and independent tax advisor regarding the tax consequences of this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitAgreement.

Section 409A of the Code. (ia) To The Company is offering severance to Executive in reliance on Treasury Regulation Section 1.409A-1(b)(9) and the extent applicableshort term deferral exemption in Treasury Regulation Section 1.409A-1(b)(4), and this Agreement is intended to comply with, or otherwise be exempt from, Section 409A and any regulations and Treasury guidance promulgated thereunder. The Company shall be interpreted undertake to administer, interpret, and construe this Agreement in accordance with a manner that does not result in the imposition on Executive of any additional tax, penalty, or interest under Section 409A. Notwithstanding 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, the contraryBoard may, if without the consent of Executive amend this Agreement as may be necessary to ensure compliance with the distribution provisions of Section 409A or as otherwise needed to ensure that this Agreement complies with Section 409A. The preceding provisions, however, shall not be construed as a guarantee by the Company determines of any particular tax effect to Executive under this Agreement. The Company shall not be liable to Executive for any payment made under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A, nor for reporting in good faith any compensation or benefits payment made under this Agreement as an amount includible in gross income under Section 409A. (b) To the extent required to avoid the imposition of additional taxes and penalties under Section 409A, amounts payable under this Agreement may on account of any termination of employment shall only be subject to paid if Executive experiences a “separation from service” as defined in Section 409A. (c) If upon Executive’s “separation from service” (within the meaning of Section 409A, the Company shall work in good faith ) with the Company, Executive to adopt such amendments to this Agreement or adopt other policies and procedures is then a “specified employee” (including amendments, policies and procedures with retroactive effectas defined in Section 409A), or take any other actions, that then solely to the Company determines are extent necessary or appropriate to comply with Section 409A and avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series defer payment of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to which is payable as a result of and within six (6) months following such separation from service until the extent provided in earlier of: (a) the exceptions in Treasury Regulation Section 1.409A-1(b)(4)first business day of the seventh month following Executive’s separation from service, Section 1.409A-1(b)(9or (b) or any other applicable exception or provision ten (10) days after the Company receives written notification of Section 409A. Any such Executive’s death. All such delayed payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination without accrual of employment under this Agreement may only be made upon the Executive’s Separation from Serviceinterest. (iiid) To the extent that any payments or reimbursements provided Notwithstanding anything to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement contrary contained in any other taxable yeardocument or agreement pursuant to which Executive becomes entitled to severance payments that constitute “deferred compensation” within the meaning of Section 409A, the form and the Executive’s right to timing of such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitdetermined based on the form and timing rules set forth in this Agreement.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, "Section 409A"). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including including, without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d12(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “"nonqualified deferred compensation” " subject to Section 409A and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service.409A. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s 's right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding 409A of the Code and the Department of Treasury regulations and other interpretive guidance issued thereunder, including, without limitation, any such regulations or other guidance that may be issued after the date hereof (collectively, “Section 409A”). Without limiting the generality of Section 15, and notwithstanding any provision of the Plan or this Agreement to the contrary, if at any time the Company Committee determines that any compensation or benefits payable under this Agreement the Award may be subject to Section 409A, the Company Committee shall work have the right in good faith with its sole discretion (without any obligation to do so or to indemnify the Executive Participant or any other person for failure to do so) (a) to adopt such amendments to the Plan or this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, ) that the Company it determines are necessary or appropriate to preserve the intended tax treatment of the benefits provided with respect to the Award, to preserve the economic benefits thereof or to avoid less favorable accounting or tax consequences for the imposition Corporation or any of taxes under Section 409A, including without limitation, the Subsidiaries and/or (b) to take any other actions intended that it determines are necessary or appropriate to (i) exempt the compensation and benefits payable under this Agreement Award from Section 409A, and/or (ii) 409A or to comply with the requirements of Section 409A; provided409A and thereby avoid the application of penalty taxes thereunder. Notwithstanding anything herein to the contrary, however, that no provision of this Section 11(d) Agreement shall not create an obligation on the part of the Company be interpreted or construed to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have transfer any liability for failing failure to do so. (ii) Any right to a series comply with the requirements of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to from the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) Participant or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided person to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would applyCorporation or any of its Affiliates, such amounts shall be paid employees 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitagents.

Section 409A of the Code. (i) To the extent applicable, this This Award Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided409A of the Code and the regulations thereunder, howeverand the provisions of this Award Agreement shall be interpreted in a manner that satisfies the requirements of Section 409A of the Code, and this Award Agreement shall be operated accordingly. If any provision of this Award Agreement or any term or condition of the Award would otherwise conflict with this intent, the provision, term or condition shall be interpreted and deemed amended so as to avoid this conflict. Notwithstanding anything else in this Award Agreement, if the Board considers a Recipient to be a “specified employee” under Section 409A of the Code at the time of such Recipient’s “separation from service” (as defined in Section 409A of the Code), and the amount under the Award is “deferred compensation” subject to Section 409A of the Code any distribution that this Section 11(d) otherwise would be made to such Recipient with respect to the Award as a result of such separation from service shall not create an obligation on be made until the part date that is six months after such separation from service, except to the extent that earlier distribution would not result in such Recipient’s incurring interest or additional tax under Section 409A of the Company to adopt any such amendmentCode. If the Award includes a “series of installment payments” (within the meaning of Section 1.409A-2(b)(2)(iii) of the Treasury Regulations), policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any Recipients’ right to a the series of installment payments pursuant to this Agreement is to shall be treated as a right to a series of separate paymentspayments and not as a right to a single payment. To Notwithstanding the extent permitted under Section 409Aforegoing, any separate payment or benefit the tax treatment of the benefits provided under this Award Agreement is not warranted or otherwise guaranteed, and in no event shall not the Company be deemed “nonqualified deferred compensation” subject to liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Recipient on account of non-compliance with Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitCode.

Section 409A of the Code. (i) To It is the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision intention of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments parties to this Agreement that no payment or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments entitlement pursuant to this Agreement will give rise to any adverse tax consequences under Section 409A of the Code (“Section 409A”) and that such payments or entitlements to which the Executive is or could become entitled to under this Agreement are intended to be treated as a right exempt from or comply with Section 409A, with the payments intended to a series of separate payments. To be exempt under the “short-term deferral” and “separation pay” exceptions to the maximum extent permitted under Section 409A, and this Agreement shall be interpreted and administered in a manner consistent with such intent. Further, no effect shall be given to any separate provision herein in a manner that reasonably could be expected to give rise to adverse tax consequences under Section 409A. Notwithstanding the foregoing, the Company may unilaterally amend the terms of this Agreement to avoid the application of, or to comply with, Section 409A, in a particular circumstance or as necessary or desirable to satisfy any of the requirements under Section 409A or to mitigate any additional tax, interest and/or penalties that may apply under Section 409A if exemption or compliance is not practicable, but the Company shall not be under any obligation to make any such amendment. For purposes of Section 409A, each installment payment or benefit provided under this Agreement shall be treated as a separate and distinct payment. Nothing in this Agreement shall provide a basis for any person to take action against the Company or otherwise any affiliate thereof based on matters covered by Section 409A, including the tax treatment of any amount paid under the Agreement, and neither the Company nor any of its affiliates shall not be deemed “nonqualified deferred compensation” subject to Section 409A under any circumstances have any liability to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) Executive or his estate or any other applicable exception party for any taxes, penalties or provision of interest due on amounts paid or payable under this Agreement, including taxes, penalties or interest imposed under Section 409A. Any payments subject Without limiting the generality of the foregoing and anything in this Agreement to Section 409A that are subject the contrary notwithstanding, if amounts or benefits payable by reference to execution the timing of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as Executive’s termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified employment constitute non-qualified deferred compensation subject to Section 409A 409A, as determined in the Company’s sole discretion, (i) such amounts or benefits shall not be paid unless the Executive experiences a “separation from service” (within the meaning of Section 409A), (ii) to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to payment period conditioned on the Executive under this Agreement are deemed to constitute compensation to Executive’s execution of a release commences in one calendar year and ends in the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would applysubsequent calendar year, such amounts or benefits shall be paid or reimbursed reasonably promptly, but not later than December 31 in the second calendar year; and (iii) if Executive is a “specified employee” (within the meaning of Section 409A) as of the year following the year in which the expense was incurred. The amount date of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to separation from service, such payments amounts or reimbursement of any such expenses benefits shall not be subject to liquidation paid until the date that is six months and one day following the date of Executive’s separation from service, or exchange for any other benefitif earlier, the date of Executive’s death.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (iA) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (iiB) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vii), are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. If the Grantee is deemed a "specified employee" within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Grantee becomes eligible for settlement of the Performance Shares upon his/her "separation from service" within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to date that is six months following the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies Grantee's separation from service and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) the Grantee's death. It is the intent that this Performance Share Award shall comply with the requirements of Section 409A, and any ambiguities herein will be interpreted to so comply. The Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify this Agreement as may be necessary to ensure that all vesting or payouts provided under this Agreement are made in a manner that complies with Section 409A or to mitigate any additional tax, interest and/or penalties or other adverse tax consequences that may apply under Section 409A if compliance is not practical; provided, however, that nothing in this Section 11(d) shall not create paragraph creates an obligation on the part of the Company to adopt any such amendmentmodify the terms of this Agreement or the Plan, policy and the Company makes no representation that the terms of this Performance Share Award Agreement will comply with Section 409A or procedure that payments under this Performance Share Award Agreement will not be subject to taxes, interest and penalties or take any such other action, nor adverse tax consequences under Section 409A. In no event shall the Company have or any liability of its Subsidiaries be liable to any party for any additional tax, interest or penalties that may be imposed on the Grantee by Section 409A or any damages for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.409A.

Section 409A of the Code. (ia) To The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively, “Section 409A of the Code”), and accordingly, to the maximum extent applicablepermitted, this Agreement shall be interpreted to be in accordance compliance therewith. If the Executive notifies the Company (with Section 409A. Notwithstanding specificity as to the reason therefor) that the Executive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Section 409A of the Code and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with the Executive, reform such provision to attempt to comply with Section 409A of the Code through good faith modifications to the contraryminimum extent reasonably appropriate to conform with Section 409A of the Code. To the extent that any provision hereof is modified in order to comply with Section 409A of the Code, if such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company determines that any compensation or benefits payable under this Agreement may be subject to of the applicable provision without violating the provisions of Section 409A409A of the Code. For the sake of clarity, the Company shall work in good faith with have no obligation to indemnify the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements for liabilities incurred as a result of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do soCode. (iib) Any right to a series A termination of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” If the Executive is deemed on the Termination Date to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service,” such payment or benefit shall be made or provided at the date which is the earlier of (i) the expiration of the six (6) month period measured from the date of such “separation from service” of the Executive, and (ii) the date of the Executive’s death, to the extent required under Section 409A of the Code. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 22(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum with interest at the prime rate as published in The Wall Street Journal on the first business day following the date of the “separation from service,” and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. (c) To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” subject to for purposes of Section 409A of the Code, (i) all expenses or other reimbursements hereunder shall be made on or prior to the extent provided in last day of the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar taxable year following the calendar taxable year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon expenses were incurred by the Executive’s Separation from Service. ; (iiiii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments reimbursement or reimbursement of any such expenses in-kind benefits shall not be subject to liquidation or exchange for another benefit; and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other benefittaxable year. (d) For purposes of Section 409A of the Code, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company. (e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code be subject to offset by any other amount unless otherwise permitted by Section 409A of the Code.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d13(f) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon Employee’s Separation from Service (as defined below) from the Company. (iii) Notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any severance payments or benefits payable under Section 4 hereof, shall be paid to the Executive during the six (6)-month period following the Executive’s “separation from service” from the Company (within the meaning of Section 409A, a “Separation from Service”) if the Company determines that at the time of Executive’s Separation from ServiceService that Executive is a “specified employee” for purposes of Section 409A and 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 day of the seventh month following the date of Separation from Service (or such earlier date upon which such amount can be paid under Section 409A without resulting in a prohibited distribution, including as a result of the Executive’s death), the Company shall pay the Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to the Executive during such period. (iiiiv) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vi) hereof, are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (iA) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (iiB) comply with the requirements of Section 409A; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s “separation from service” from the Company (within the meaning of Section 409A, a “Separation from Service”). (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if Employee is considered a “specified employee” upon his termination from employment under such procedures as established by Company in accordance with the Company determines limitations and requirements set forth in Section 409A of the Code, the regulations promulgated thereunder, and any additional guidance issued by the Internal Revenue Service related thereto (the “Nonqualified Deferred Compensation Rules”), then any portion of a cash payment or benefit distribution made upon such a termination from employment under Section 5.4 or 5.5 or otherwise that would cause the acceleration of, or an addition to, any compensation taxes pursuant to the Nonqualified Deferred Compensation Rules may not commence earlier than six months after the date of such termination from employment; except to the extent any such payments or benefits payable would be exempt from the Nonqualified Deferred Compensation Rules, which such payments and benefits shall be paid in accordance with the original schedules noted in other sections of this Agreement. Therefore, in the event this Section 8.12 is applicable to Employee, any payment or distribution under Section 5.4 or 5.5 or otherwise that would cause the acceleration of, or an addition to, any taxes pursuant to the Nonqualified Deferred Compensation Rules that would otherwise have been paid to Employee within the first six months following Employee’s termination from employment shall be accumulated and paid to Employee, without interest, in a lump sum on the first day of the seventh month following his termination from employment (except to the extent exempt from the Nonqualified Deferred Compensation Rules). If any provision of this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with does not satisfy the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Code, then such provision shall nevertheless be applied in a manner consistent with those requirements. In no event whatsoever shall Company be liable for any tax, interest or penalties that may be imposed on Employee under Section 409A of the Code. Each payment under this Agreement is intended to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to be a “separate payment” and not a series of installment payments pursuant to this Agreement is to be treated as a right to a series for purposes of separate paymentsSection 409A of the Code. To the extent permitted under Section 409A, Any payments or reimbursements of any separate payment or benefit expenses provided for under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Servicein accordance with Treas. Reg. §1.409A-3(i)(1)(iv). (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including including, without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d12(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service.409A. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (ia) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) 11.7 shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (iib) Notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any severance payments or benefits payable under Section 5.2 hereof, shall be paid to Executive during the six (6)-month period following Executive’s “separation from service” from the Company (within the meaning of Section 409A, a “Separation from Service”) if the Company determines 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 day of the seventh month following the date of Separation from Service (or such earlier date upon which such amount can be paid under Section 409A without resulting in a prohibited distribution, including as a result of Executive’s death), the Company shall pay Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such period. (c) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A and Section 11.7(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service.409A. (iiid) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicablethat Section 409A of the Code is applicable to this Agreement, the following provisions shall apply to the terms of this Agreement. (a) This Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company or the Executive determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including adopting amendments, policies and procedures with retroactive effect), or take any other actions, actions that the Company determines and the Executive determine are necessary or appropriate to avoid maintain to the maximum extent practicable the original intent of the applicable provision while avoiding the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to to: (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt any such amendmentCode and related Department of Treasury guidance. Notwithstanding the above, policy or procedure or take any such other action, nor in no event shall the Company have Executive be required to forgo any liability for failing compensation, benefits or other rights to do sowhich he is entitled hereunder. (iib) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject 409A of the Code. (c) Notwithstanding anything to Section 409A that are subject to execution the contrary in this Agreement: (i) the amount of a waiver and release which may be executed and/or revoked in a calendar expenses eligible for reimbursement during any taxable year following of the calendar Executive shall not affect the amount of expenses eligible for reimbursement during any other taxable year in which of the payment event Executive, (such as termination of employmentii) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be any expense reimbursement made upon a termination of employment under this Agreement may only shall be made upon promptly, but in no event later than the last day of the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 of the taxable year immediately following the taxable year in during which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and (iii) the Executive’s right to such payments or expense reimbursement of any such expenses under this Agreement shall not be subject to liquidation or exchange for another benefit. For purposes of this Agreement, in-kind benefits and perquisites shall be treated in the same manner as expenses eligible for reimbursement. (d) Notwithstanding anything to the contrary in this Agreement, no compensation or benefits shall be paid to the Executive during the six-month period following the Executive’s “separation from service” (within the meaning of Section 409A(a)(2)(A)(i) of the Code) if: (i) the Executive is a “specified employee” (within the meaning of Section 409A(a)(2)(B)(i)), and (ii) the Company determines 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 other benefitsuch amounts is delayed as a result of the previous sentence, then on the first business day following the end of such six-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of the Executive’s death), the Company shall pay the Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to the Executive during such period.

Section 409A of the Code. (ia) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company Corporation determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company Corporation shall work in good faith with the Executive Employee to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company Corporation determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company Corporation to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company Corporation have any liability for failing to do so. (iib) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service.409A. (iiic) To the extent that any payments or reimbursements provided to the Executive Employee under this Agreement are deemed to constitute compensation to the Executive Employee to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the ExecutiveEmployee’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (i) To the extent applicable“Code”), this Agreement and the Treasury regulations and other interpretive guidance issued thereunder (collectively, “Section 409A”), or to be treated as exempt therefrom, and shall be interpreted construed and administered in accordance with such intent. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service, as a short-term deferral, or as any other compensation that is otherwise exempt from Section 409A shall be excluded from Section 409A to the maximum extent possible. Any payments to be made under this Agreement upon a termination of Executive’s employment that are deemed to constitute non-qualified deferred compensation subject to Section 409A shall only be made if such termination of employment constitutes a “separation from service” under Section 409A. Notwithstanding any provision of in this Agreement to the contrary, if any payment or benefit provided for herein would be subject to additional taxes and interest under Section 409A if Executive’s receipt of such payment or benefit is not delayed until the Company determines earlier of (i) the date of Executive’s death or (ii) the date that any compensation is six (6) months after the Date of Termination of Executive’s employment hereunder (such applicable date, the “Section 409A Payment Date”), then such payment or benefits payable benefit shall not be provided to Executive (or Executive’s estate, if applicable) until the Section 409A Payment Date. Each payment under this Agreement may is intended to be subject to a “separate payment” and not one of a series of payments for purposes of Section 409A409A. Notwithstanding the foregoing, the Company does not guarantee any particular tax effect, and Executive shall work be solely responsible and liable for the satisfaction of all taxes, penalties and interest that may be imposed on or for the account of Executive in good faith connection with the Executive to adopt such amendments to this Agreement or adopt other policies (including, but not limited to, any taxes, penalties and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes interest under Section 409A), including without limitation, actions intended to (i) exempt and neither the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other actionCompany, nor any of its affiliates, shall the Company have any liability for failing obligation to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement indemnify or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) hold Executive (or any other applicable exception beneficiary) harmless from any or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period orall taxes, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Servicepenalties or interest. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(e) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vii), are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(ivSection 1. 409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. The parties intend that any amounts payable hereunder comply with or are exempt from Section 409A of the Code (i“Section 409A”) To (including under Treasury Regulation §§ 1.409A-1(b)(4) (“short-term deferrals”) and (b)(9) (“separation pay plans,” including the extent applicableexceptions under subparagraph (iii) and subparagraph (v)(D)) and other applicable provisions of Treasury Regulation §§ 1.409A-1 through A-6). For purposes of Section 409A, each of the payments that may be made under this Agreement shall be interpreted in accordance with deemed to be a separate payment for purposes of Section 409A. Notwithstanding any provision This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of this Agreement additional taxes, penalties or interest under Section 409A. The Company and you agree to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work negotiate in good faith with the Executive to adopt such make amendments to this Agreement or adopt other policies and procedures (including amendmentsthe Agreement, policies and procedures with retroactive effect), or take any other actions, that as the Company determines parties mutually agree are necessary or appropriate desirable to avoid the imposition of taxes taxes, penalties or interest under Section 409A. Notwithstanding the foregoing, the Company does not guarantee any particular tax effect, and you shall be solely responsible and liable for the satisfaction of all taxes, penalties and interest that may be imposed on or for the account of you in connection with the Agreement, as amended by this Amendment, (including any taxes, penalties and interest under Section 409A), including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part no member of the Company to adopt any such amendment, policy or procedure or take any such other action, nor Group shall the Company have any liability for failing obligation to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement indemnify or otherwise shall not be deemed hold you (or any beneficiary) harmless from any or all of such taxes, penalties or interest. With respect to the time of payments of any amounts under the Agreement that are “nonqualified deferred compensation” subject to Section 409A to the extent provided 409A, references in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9Agreement to “separation from employment” (and substantially similar phrases) or any other applicable exception or provision shall mean “separation from service” within the meaning of Section 409A. Any payments subject For the avoidance of doubt, it is intended that any expense reimbursement made to you hereunder shall be exempt from Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following 409A. Notwithstanding the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period orforegoing, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A any expense reimbursement made hereunder shall be determined to be made upon a termination “deferred compensation” within the meaning of employment under this Agreement may only Section 409A, then (i) the amount of the indemnification payment or expense reimbursement during one taxable year shall not affect the amount of the expense reimbursement during any other taxable year, (ii) the expense reimbursement shall be made upon on or before the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 last day of the your taxable year following the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect incurred and (iii) the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or expense reimbursement of any such expenses hereunder shall not be subject to liquidation or exchange for another benefit. In addition, any other benefitreimbursements for COBRA coverage premiums described in this Agreement shall be paid to you as promptly as practicable, and in all events on or before the last day of the third taxable year of you following the taxable year of the Company in which your employment terminated.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with meet the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt any such amendmentInternal Revenue Code of 1986, policy or procedure or take any such other action, nor shall as amended (the Company have any liability for failing to do so. (ii“Code”) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided applicable, the Parties intend to administer this Agreement in a manner that is consistent with those requirements or an exception thereto, and this Agreement shall be construed and interpreted in accordance with such intent. Any payments that are considered deferred compensation under Section 409A of the exceptions Code and that are paid to a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(b)(4409A of the Code) upon separation from service shall be subject to a six (6) month delay, if required by Section 409A of the Code. If required by Section 409A of the Code, any amounts otherwise payable during the six (6) month period that commences on and follows the Employee’s termination date shall be paid in one lump sum amount on the first payroll date following the six (6) month period following the Employee date of termination (or within thirty (30) days of the Employee’s death, if earlier), Section 1.409A-1(b)(9) or any other applicable exception or provision . For purposes of Section 409A. Any 409A of the Code, all payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” (within the Executive’s Separation from Service. (iii) To meaning of such term under Section 409A of the extent that any payments or reimbursements provided to the Executive Code). Each payment made under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid treated as a separate payment. In no event shall the Employee, directly or reimbursed reasonably promptlyindirectly, but not later than December 31 designate the calendar year of a payment. All reimbursements under this Agreement shall be provided in a manner that complies with Section 409A of the year following Code, if applicable. If required by regulations or other guidance issued under Section 409A of the year in which Code or a court of competent jurisdiction, the expense was incurred. The amount of any provisions regarding payments hereunder shall be amended to provide for such payments eligible for reimbursement in one year shall not affect to be made at the payments time allowed under such regulations, guidance or expenses authority that are eligible for payment or reimbursement in any other taxable year, and most closely achieves the Executive’s right to such payments or reimbursement intent of any such expenses shall not be subject to liquidation or exchange for any other benefitthis Agreement.

Section 409A of the Code. (i) To This Agreement is intended to comply with, or be exempt from, Section 409A of the extent applicableInternal Revenue Code of 1986, as amended (together with the applicable regulations thereunder, “Section 409A”) with respect to amounts, if any, subject thereto and shall be interpreted, construed and performed consistent with such intent. For purposes of Section 409A, each payment made under this Agreement shall be interpreted in accordance with designated as a “separate payment” within the meaning of Section 409A. The Company makes no representations regarding the tax implications of the compensation and benefits to be paid to Executive under this Agreement, including, without limit, under Section 409A. (ii) Notwithstanding any provision of this Agreement anything herein to the contrary, if (i) at the time of Executive’s “separation from service” (as defined in Treas. Reg. Section 1.409A-1(h)) with the Company determines that any compensation other than as a result of death, (ii) Executive is a “specified employee” (as defined in Section 409A(a)(2)(B)(i)), (iii) one or more of the payments or benefits payable under received or to be received by Executive pursuant to this Agreement may be would constitute deferred compensation subject to Section 409A, and (iv) the Company shall work deferral of the commencement of any such payments or benefits otherwise payable hereunder as a result of such separation of service is necessary in good faith with the Executive order to adopt such amendments to this Agreement prevent any accelerated or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes additional tax under Section 409A, including then the Company will defer the commencement of the payment of any such payments or benefits hereunder to the extent necessary (without limitation, actions intended any reduction in such payments or benefits ultimately paid or provided to (iExecutive) exempt until the compensation and benefits payable under this Agreement date that is six months following Executive’s separation from Section 409A, and/or (ii) comply service with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on Company (or the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement earliest date as is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A). Any payment deferred during such six-month period shall be paid in a lump sum on the day following such six-month period, any separate payment together with interest at the applicable federal rate pursuant to Section 1274 of the Code. Any remaining payments or benefit benefits shall be made as otherwise scheduled under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceAgreement. (iii) To the extent that any payments reimbursements or reimbursements provided in-kind benefits due to the Executive under this Agreement are deemed to constitute deferred compensation to the Executive to which Treasury Regulation under Section 1.409A-3(i)(1)(iv) would apply409A, any such amounts reimbursements or in-kind benefits shall be paid or reimbursed reasonably promptly, but not later than December 31 of the year following the year to Executive in which the expense was incurreda manner consistent with Treas. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitReg. Section 1.409A-3(i)(1)(iv).

Section 409A of the Code. (i) To This Employment Agreement is intended to comply with Section 409A of the Code and its corresponding regulations, or an exemption, and payments may only be made under this Employment Agreement upon an event and in a manner permitted by Section 409A of the Code, to the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable . Payment under this Employment Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) be exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Code Section 409A to under the extent provided in the exceptions “short-teen deferral” exception set forth in Treasury Regulation Section 1.409A-1(b)(4), to the maximum extent applicable, and then under the “separation pay” exception set forth in Treasury Regulation Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject ), to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if maximum extent applicable, release revocation period ends, as necessary to comply with Section 409A. . All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” within the Executive’s meaning of Treasury Regulation Section 1.409A-1(h) (or any successor provision) (a “Separation from Service. (iii) To ”). For purposes of Code Section 409A, the extent that any right to a series of installment payments or reimbursements provided to the Executive under this Agreement are deemed shall be treated as a right to constitute compensation a series of separate payments. In no event may the Executive, directly or indirectly, designate the calendar year of a payment. If the termination of employment giving rise to the payments described in Section 3.2.1 is not a Separation from Service, then the amounts otherwise payable pursuant to Section 3.2.1 will instead be deferred without interest and paid when Executive experiences a Separation from Service. Notwithstanding anything in this Employment Agreement to the contrary or otherwise, with respect to any expense, reimbursement or in-kind benefit provided pursuant to this Employment Agreement that constitutes a “deferral of compensation” within the meaning of Section 409A of the Code and its implementing regulations and guidance, (a) the expenses eligible for reimbursement or in-kind benefits provided to Executive must be incurred during the Employment Term (or applicable survival period), (b) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (c) the reimbursements for expenses for which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts Executive is entitled to be reimbursed shall be paid made on or reimbursed reasonably promptly, but not later than December 31 before the last day of the calendar year following the calendar year in which the applicable expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect is incurred and (d) the payments or expenses that are eligible for right to payment or reimbursement in any other taxable year, and the 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. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by Employer at the time of his Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, and if any of the payments due upon Separation From Service set forth herein and/or under any other agreement with Employer are deemed to be “deferred compensation,” then to the extent delayed commencement of any portion of such payments is required to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code and the related adverse taxation under Section 409A of the Code, such payments will not be provided to Executive prior to the earliest of (i) the expiration of the six (6)-month period measured from the date of Executive’s Separation From Service with Employer, (ii) the date of Executive’s death or (iii) such earlier date as permitted under Section 409A of the Code without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph will be paid in a lump sum to Executive, and any remaining payments due will be paid as otherwise provided in this Agreement or in the applicable agreement. No interest will be due on any amounts so deferred.

Section 409A of the Code. (ia) To It is intended that the extent applicableprovisions of the Agreement comply with Section 409A of the Code and the regulations promulgated thereunder (“Section 409A”), and all provisions of this Agreement shall be construed and interpreted in accordance a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Notwithstanding 409A. (b) Neither Executive nor any provision of this Agreement his creditors or beneficiaries shall have the right to subject any deferred compensation (within the contrary, if the Company determines that any compensation or benefits meaning of Section 409A) payable under this Agreement may be subject to Section 409Aor under any other plan, policy, arrangement or agreement of or with the Company or any of its affiliates (the Agreement and such other plans, policies, arrangements and agreements, the “Company shall work in good faith with the Executive Plans”) to adopt such amendments to this Agreement any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated garnishment. Except as a right to a series of separate payments. To the extent permitted under Section 409A, any separate deferred compensation (within the meaning of Section 409A) payable to Executive or for Executive’s benefit under any Company Plan may not be reduced by, or offset against, any amount owing by Executive to the Company or any of its affiliates. (c) If, at the time of Executive’s separation from service (within the meaning of Section 409A), (i) Executive is a “specified employee” (within the meaning of Section 409A and using the identification methodology selected by the Company from time to time) and (ii) the Company shall make a good faith determination that an amount payable under the Company Plans constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company shall not pay such amount on the otherwise scheduled payment date, but shall instead accumulate such amount and pay it, without interest, on the first business day after such six-month period. To the extent required by Section 409A, any payment or benefit that would be considered deferred compensation subject to, and not exempt from, Section 409A, payable or provided upon a termination of Executive’s employment, shall only be paid or provided to Executive upon his separation from service (within the meaning of Section 409A). (d) For purposes of Section 409A, each payment under this the Agreement or otherwise shall not will be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in be a separate payment as permitted under Treasury Regulation Section 1.409A-1(b)(41.409A-2(b)(2)(iii). (e) Except as specifically permitted by Section 409A or as otherwise specifically set forth in the Agreement, the benefits and reimbursements provided to Executive under the Agreement and any Company Plan during any calendar year shall not affect the benefits and reimbursements to be provided to Executive under the relevant section of the Agreement or any Company Plan in any other calendar year, and the right to such benefits and reimbursements cannot be liquidated or exchanged for any other benefit and shall be provided in accordance with Treas. Reg. Section 1.409A-1(b)(91.409A-3(i)(1)(iv) or any other successor thereto. Further, in the case of reimbursement payments, reimbursement payments shall be made to Executive as soon as practicable following the date that the applicable exception or provision expense is incurred, but in no event later than the last day of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a the calendar year following the calendar year in which the payment event underlying expense is incurred. (such as termination f) The Company makes no representations concerning the tax consequences of employmentExecutive’s participation in this Agreement under Section 409A of the Code or any other Federal, state or local tax law. Executive’s tax consequences shall depend, in part, upon the application of relevant tax law, including Section 409A, to the relevant facts and circumstances. (g) occurs Notwithstanding any provision in this Agreement to the contrary, if the 55-day period for making and not revoking the Release described in Section 5(h) of this Agreement ends in a calendar year commencing after the Executive’s Date of Termination, no severance benefit payable under Section 5(a), (e) or (f) (excluding, for the avoidance of doubt, the Accrued Benefits) shall commence payment only in be payable earlier than the first day of the calendar year following such Date of Termination. The definitions set forth in this Appendix II are expressly made an integral part of the Employment Agreement, dated as of December 18, 2014, between VISTA OUTDOOR INC. and Xxxx X. XxXxxxx (the “Agreement”), to which the consideration period orthis Appendix II is attached. All capitalized terms used in this Appendix II, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to not defined, shall have the Executive under this Agreement are deemed to constitute compensation to meaning set forth in the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitAgreement.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (ia) To The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Section 409A”) and, accordingly, to the maximum extent applicablepermitted, this Agreement shall be interpreted to be in accordance with Section 409A. compliance therewith. (b) Notwithstanding any provision of this Agreement to the contrary, if in the event that Executive is a “specified employee” within the meaning of Section 409A (as determined in accordance with the methodology established by the Company determines that as in effect on the Date of Termination) (a “Specified Employee”), any compensation payments or benefits that are considered non-qualified deferred compensation under Section 409A payable under this Agreement may be subject on account of a “separation from service” during the six-month period immediately following the Date of Termination shall, to the extent necessary to comply with Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect)instead be paid, or take any other actionsprovided, as the case may be, on the first business day after the date that is six months following Executive's “separation from service” within the Company determines are necessary or appropriate to avoid the imposition meaning of taxes under Section 409A. For purposes of Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any Executive’s right to a series of receive any installment payments pursuant to this Agreement is to shall be treated as a right to receive a series of separate and distinct payments. To In no event may Executive, directly or indirectly, designate the extent permitted under Section 409A, calendar year of any separate payment or benefit to be made under this Agreement or otherwise shall not be deemed “that is considered nonqualified deferred compensation” , subject to Section 409A 409A. Notwithstanding anything in this Agreement (including this Section 10) to the contrary, to the extent provided in any payments or benefits under this Agreement would constitute a substitution of payments or benefits under the exceptions in Treasury Regulation Section 1.409A-1(b)(4)Prior Agreement, Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject then, to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as extent necessary to comply with Section 409A. All 409A, such payments or benefits shall be made at the same time and in the same form as provided under the Prior Agreement. (c) With regard to any provision herein that provides for reimbursement of nonqualified costs and expenses or in-kind benefits that are deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon 409A, (i) the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments reimbursement or reimbursement of any such expenses in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other benefittaxable year and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred.

Section 409A of the Code. (ia) This Agreement shall be construed to avoid the imposition of additional taxes, interest and penalties pursuant to Section 409A. To the extent that the Executive would otherwise be entitled to any payment under this Agreement or any plan or arrangement of the Company or its affiliates that constitutes “deferred compensation” subject to Section 409A, and that if paid during the six months beginning on the Date of termination would be subject to the Section 409A additional tax because the Executive is a “specified employee” (within the meaning of Section 409A and as determined by the Company), the payment will be paid to the Executive on the earlier of the six-month anniversary of the Date of Termination, a change in ownership or effective control of the Company (within the meaning of Section 409A) or the Executive’s death. In addition, any payment or benefit due upon a termination of employment that represents a “deferral of compensation” within the meaning of Section 409A shall be paid or provided to the Executive only upon a “separation from service” as defined in Treas. Reg. 1.409A-1(h). To the extent applicable, each severance payment made under this Agreement shall be interpreted in accordance with deemed to be separate payments, amounts payable under Section 409A. Notwithstanding any provision 4 of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may shall be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall deemed not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series “deferral of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Treas. Reg. 1.409A-1(b)(4) (“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exception under subparagraph (iii)) and other applicable provisions of Treas. Reg. 1.409A-1 through 1.409A-6. (b) Notwithstanding anything to the contrary in this Agreement or elsewhere, any payment or benefit under this Agreement or otherwise that is exempt from Section 1.409A-1(b)(4), Section 1.409A-1(b)(9409A pursuant to Treas. Reg. 1.409A-1(b)(9)(v)(A) or (C) shall be paid or provided to the Executive only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the Executive’s second taxable year following the Executive’s taxable year in which the “separation from service” occurs; and provided further that such expenses shall be reimbursed no later than the last day of the Executive’s third taxable year following the taxable year in which the Executive’s “separation from service” occurs. Except as otherwise expressly provided herein, to the extent any other applicable exception expense reimbursement or the provision of Section 409A. Any payments any in-kind benefit under this Agreement is determined to be subject to Section 409A that are subject 409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other calendar year (except for any life-time or other aggregate limitation applicable to execution medical expenses), in no event shall any expenses be reimbursed after the last day of a waiver and release which may be executed and/or revoked in a the calendar year following the calendar year in which the payment Executive incurred such expenses, and in no event (such as termination of employment) occurs shall commence payment only in any right to reimbursement or the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 provision of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not in-kind benefit be subject to liquidation or exchange for any other another benefit.

Section 409A of the Code. This Agreement is intended to comply with Section 409A of the Code, and the Treasury regulations and other interpretive guidance issued thereunder (i) To the extent applicablecollectively, this Agreement “Section 409A”), or to be treated as exempt therefrom, and shall be interpreted construed and administered in accordance with such intent. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service, as a short-term deferral, or as any other compensation that is otherwise exempt from Section 409A shall be excluded from Section 409A to the maximum extent possible. Any payments to be made under this Agreement upon a termination of Executive’s employment that are subject to Section 409A shall only be made if such termination of employment constitutes a “separation from service” under Section 409A. Notwithstanding any provision of in this Agreement to the contrary, if any payment or benefit provided for herein would be subject to additional taxes and interest under Section 409A if Executive’s receipt of such payment or benefit is not delayed until the Company determines earlier of (i) the date of Executive’s death or (ii) the date that any compensation is six months after the Date of Termination of Executive’s employment hereunder (such date, the “Section 409A Payment Date”), then such payment or benefits payable benefit shall not be provided to Executive (or Executive’s estate, if applicable) until the Section 409A Payment Date. Any such payment shall be immediately deposited in a segregated account pending its distribution to Executive on the Section 409A Payment Date. Each payment under this Agreement may is intended to be subject to a “separate payment” and not one of a series of payments for purposes of Section 409A409A. Notwithstanding the foregoing, the Company does not guarantee any particular tax effect, and Executive shall work be solely responsible and liable for the satisfaction of all taxes, penalties and interest that may be imposed on or for the account of Executive in good faith connection with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendmentsany taxes, policies penalties and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes interest under Section 409A), including without limitation, actions intended to (i) exempt and neither the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other actionCompany, nor any of its affiliates, shall the Company have any liability for failing obligation to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement indemnify or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) hold Executive (or any other applicable exception beneficiary) harmless from any or provision all of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period ortaxes, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Servicepenalties or interest. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. It is the intention of the parties that all payments and benefits under this Agreement be exempt from, or if not so exempt, comply with Section 409A of the Internal Revenue Code of 1986, as amended, and any guidance issued thereunder (i) To the extent applicable“Code”), this and the Agreement shall be interpreted interpreted, operated and administered accordingly. Notwithstanding anything in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if Executive is considered a “specified employee” or “key employee” of the Company determines that any compensation and has experienced a “separation from service,” each within the meaning of Section 409A of the Code, no payments or benefits payable under this Agreement may that are considered deferred compensation shall be subject made to Executive prior to the date that is six (6) months after the date of Executive’s “separation from service” (or, if earlier, the Executive’s date of death). The Company shall indemnify the Executive if the Executive incurs additional tax under Section 409A409A of the Code as a result of a violation of Section 409A of the Code (each an “Indemnified Section 409A Violation”) that occurs as a result of (1) the Company’s clerical error (other than an error cause by erroneous information provided to the Company by the Executive), (2) the Company’s failure to administer this Agreement or any benefit plan or program in accordance with its written terms (such written terms, the “Plan Document”), or (3) following December 31, 2008, the Company’s failure to maintain the Plan Documents in compliance with Section 409A of the Code; provided, that the indemnification set forth in clause (3) shall not be available to the Executive if (x) the Company has made a reasonable, good faith attempt to maintain the applicable Plan Document in compliance with Code Section 409A but has failed to do so or (y) the Company has maintained the applicable Plan Document in compliance with Section 409A of the Code but subsequent issuance by the Internal Revenue Service or the Department of the Treasury of interpretive authority results in the applicable Plan Document not (or no longer) complying with Section 409A of the Code (except that, if the Company is permitted by such authority or other authority to amend the Plan Document to bring the Plan Document into compliance with Section 409A of the Code and fails to do so, then such indemnification shall be provided). (i) In the event of an Indemnified Section 409A Violation, the Company shall work in good faith with reimburse the Executive for (1) the 20% additional income tax described in Section 409A(a)(1)(B)(i)(II) of the Code (to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effectthe extent that the Executive incurs the 20% additional income tax as a result of the Indemnified Section 409A Violation), and (2) any interest or take any other actionspenalty that is assessed with respect to the Executive’s failure to make a timely payment of the 20% additional income tax described in clause (1), provided that the Company determines Executive pays the 20% additional income tax promptly upon being notified that the tax is due (the amounts described in clause (1) and clause (2) are necessary or appropriate referred to avoid collectively as the imposition of taxes under “Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so409A Tax”). (ii) Any right to a series In addition, in the event of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to an Indemnified Section 409A Violation, the Company shall make a payment (the “Section 409A Gross-Up Payment”) to the Executive such that the net amount the Executive retains, after paying any federal, state, or local income tax or FICA tax on the Section 409A Gross-Up Payment, shall be equal to the Section 409A Tax. The Executive shall reasonably cooperate with measures identified by the Company that are intended to mitigate the Section 409A Tax to the extent provided in that such measures do not materially reduce or delay the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided benefits to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefithereunder.

Section 409A of the Code. This Agreement is intended, to the greatest extent permitted under law, to comply with the short-term deferral exemption and the separation pay exemption provided in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other interpretative guidance issued thereunder (i“Section 409A”) such that no benefits or payments under this Agreement are subject to Section 409A. Notwithstanding anything herein to the contrary, the timing of any payments under this Agreement shall be made consistent with such exemption. Executive’s right to receive a series of installment payments under this Agreement, if any, shall be treated as a right to receive a series of separate payments. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A, including without limitation any such regulations or other guidance that may be issued after the Termination Date. Notwithstanding any provision of this Agreement to the contrary, if in the event that the Company determines that any compensation or benefits amounts payable under this Agreement hereunder may be subject to Section 409A, the Company shall work may, to the extent permitted under Section 409A cooperate in good faith with the Executive to adopt such amendments to this Agreement or adopt other appropriate policies and procedures (procedures, including amendments, amendments and policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) paragraph shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided payable pursuant to the Executive under this Agreement are deemed to constitute compensation subject to the Executive to which Treasury Regulation provisions of Section 1.409A-3(i)(1)(iv) would apply409A, such amounts reimbursements shall be paid or reimbursed reasonably promptly, but not to Executive no later than December 31 of the year following the year in which the expense was incurred. The , the amount of any such payments eligible for reimbursement expenses reimbursed in one year shall not affect the payments or expenses that are amount eligible for payment or reimbursement in any other taxable subsequent year, and the Executive’s right to such payments or reimbursement of any such expenses shall under this Agreement will not be subject to liquidation or exchange for any other another benefit.

Section 409A of the Code. ​ a. This Agreement is intended to comply with, or be exempt from, Section 409A of the Code (i“Section 409A”) To the extent applicable, this Agreement shall and will be interpreted accordingly. Notwithstanding anything in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable references under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect)termination of Executive’s employment hereunder, or take any other actions, “Termination Date” shall be deemed to refer to the date upon which Executive has experienced a Separation from Service. It is the intent of the Parties that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the all compensation and benefits payable or provided to Executive (whether under this Agreement from Section 409A, and/or (iior otherwise) shall fully comply with the requirements of Section 409A; provided409A. Notwithstanding the foregoing, however, that this Section 11(d) shall not create an obligation on the part of the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A. ​ b. Notwithstanding any provision in this Agreement or elsewhere to adopt any such amendmentthe contrary, policy or procedure or take any such other action, nor shall if upon a termination of employment Executive is deemed to be a “specified employee” within the meaning of Section 409A using the identification methodology selected by the Company have any liability for failing from time to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To time, or if none, the extent permitted default methodology under Section 409A, any separate payments or benefits due upon a termination of Executive’s employment under any arrangement that constitutes a “deferral of compensation” within the meaning of Section 409A shall be delayed and paid or provided (or commence, in the case of installments) on the first payroll date on or following the earlier of (i) the date which is six (6) months and one (1) day after Executive’s termination of employment for any reason other than death, and (ii) the date of Executive’s death, and any remaining payments and benefits shall be paid or provided in accordance with the normal payment dates specified for such payment or benefit benefit; provided, that, payments or benefits that qualify as short-term deferral (within the meaning of Section 409A and Final Treasury Regulations Section 1.409A-1(b)(4)) or involuntary separation pay (within the meaning of Section 409A and Final Treasury Regulations Section 1.409A-1(b)(9)(iii)(A)) and are otherwise permissible under Section 409A and the Final Treasury Regulations, shall not be subject to such six (6)-month delay. ​ c. Each payment made under this Agreement or otherwise shall not be deemed designated as a “nonqualified deferred compensationseparate payment” within the meaning of Section 409A. ​ x. Xx the extent that any payment hereunder is subject to Section 409A to the extent provided and may be payable in one of two calendar years, payment shall be made in the exceptions in Treasury Regulation Section 1.409A-1(b)(4)later year. ​ e. Any amount of expenses eligible for reimbursement, Section 1.409A-1(b)(9) or in-kind benefit provided, during a calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefit to be provided, during any other applicable exception or provision calendar year. Any reimbursement shall be made no later than the last day of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a the calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A expenses to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 were incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments any reimbursement or reimbursement of any such expenses in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit.. ​ x. Xx the event that either Executive or the Company’s senior management becomes aware that any provision of this Agreement violates Section 409A, the Parties will meet ​ ​ ​ and confer regarding such issues and will engage in good faith discussions regarding whether and how the Agreement can be modified so as to minimize the likelihood of a Section 409A violation while providing Executive with financial terms substantially commensurate to those set forth in this Agreement. ​ g. Notwithstanding the foregoing, the Company and the Partnership make no representations or warranties and will have no liability to Executive or any other person if any provisions of or payments under this Agreement are determined to constitute deferred compensation subject to Section 409A but not to satisfy the conditions of Section 409A. ​

Section 409A of the Code. (i) To Except to the extent applicablethe Restricted Share Units are deferred by the Grantee pursuant to the with the Company’s Independent Director Compensation Policy and deferral program, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement such a manner that all provisions relating to the contrary, if settlement of the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines Award are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall Code as “short-term deferrals” as described in Section 409A of the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate paymentsCode. To the extent permitted the Restricted Share Units are deferred by the Grantee, it is intended that the Award shall be compliant with Section 409A of the Code. Notwithstanding the foregoing, the Agreement and the Plan may be amended at any time, without the consent of any party, to the extent necessary or desirable to satisfy any of the requirements under Section 409A409A or Section 457A of the Code, any separate payment or benefit under this Agreement or otherwise but the Company shall not be deemed “nonqualified deferred compensation” subject under any obligation to make any such amendment. Further, the Company and its Subsidiaries do not make any representation to the Grantee that the Restricted Share Units satisfy the requirements of Section 409A or Section 457A of the Code, and the Company and its Subsidiaries will have no liability or other obligation to indemnify or hold harmless the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) Grantee or any other applicable exception party for any tax, additional tax, interest or penalties that the Grantee or any other party may incur in the event that any provision of Section 409A. Any payments subject the Agreement or any amendment or modification thereof or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with or Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 457A of the year following the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitCode.

Section 409A of the Code. (ia) To Amounts payable under this Agreement are intended either to be exempt from the extent applicablerules of Section 409A of the Code or to satisfy those rules and shall be construed accordingly. The Company shall not be liable to Employee with respect to any Agreement- related adverse tax consequences arising under Section 409A or other provision of the Code. (b) If any provision of this Agreement contravenes any regulations or Treasury guidance promulgated under Code Section 409A or could cause an amount payable hereunder to be subject to the interest and penalties under Code Section 409A, this such provision of the Agreement shall be interpreted in accordance with deemed automatically modified to maintain, to the maximum extent practicable, the original intent of the applicable provision without violating the provisions of Code Section 409A. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “Separation from Service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean Separation from Service. (c) Notwithstanding any provision provisions of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Employee is a “specified employee” (as such term is defined for purposes of Code Section 409A), no payment of amounts not exempt from Code Section 409A shall be made under Section 6(c) or 6(e) hereof prior to the six (6) month anniversary of Employee’s separation of service to the extent such six (6) month delay in payment is required to comply with Code Section 409A. To the extent that this Section 8(c) applies to any Severance Payment under Section 6(c) hereof, and the actions described in this sentence do not cause adverse tax consequences to be imposed under the Code, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendmentsshall, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year soon as practicable following the calendar year in which the payment event (such as Employee’s termination of employment) occurs shall commence payment only , and after Employee executes and does not revoke the General Release, deposit an amount equal to the gross amount of such Severance Payment into an irrevocable Rabbi Trust in the calendar year in which form prescribed by Internal Revenue Service Revenue Procedure 92-64. Such Rabbi Trust shall be established and maintained by the consideration period orCompany, if applicableat its own expense, release revocation period ends, as necessary pending the distribution of such amount to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment Employee under this Agreement may only Agreement. The Trustee shall be made upon a financial institution selected by the ExecutiveCompany and the Trustee shall invest all amounts deposited therein with the purpose of preserving the Trust principal. All principal and income from the Rabbi Trust shall be paid to Employee on the first day following the six-month anniversary of Employee’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year Trustee shall not affect the payments withhold or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right cause to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitwithheld all withholding taxes as may be required by applicable law.

Section 409A of the Code. (i) To The Plan as well as payments and benefits under the Plan are intended to be exempt from, or to the extent applicablesubject thereto, this Agreement to comply with Section 409A of the Code, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted in accordance with Section 409A. therewith. Notwithstanding any provision of this Agreement anything contained herein to the contrary, if to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Participant shall not be considered to have terminated employment, tenure or service with the Company determines that for purposes of the Plan and no payment shall be due to the Participant under the Plan or any compensation or benefits payable under this Agreement may Award until the Participant would be subject considered to Section 409A, have incurred a “separation from service” from the Company shall work in good faith with and its Affiliates within the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements meaning of Section 409A; provided, however, 409A of the Code. Any payments described in the Plan that this are due within the “short term deferral period” as defined in Section 11(d) 409A of the Code shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate paymentsdeferred compensation unless applicable law requires otherwise. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A Notwithstanding anything to the extent provided contrary in the exceptions in Treasury Regulation Section 1.409A-1(b)(4)Plan, Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments Awards (or reimbursements provided any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business day after the date that is six (6) months following such separation from service (or upon the Participant’s death, if earlier). Each amount to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the year following the year in which the expense was incurredCode. The amount Company makes no representation that any or all of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible benefits described in this Plan will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefittaxes and penalties incurred under Section 409A of the Code.

Section 409A of the Code. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (i) To the extent applicable“Code”), this Agreement and the Treasury regulations and other interpretive guidance issued thereunder (collectively, “Section 409A”), or to be treated as exempt therefrom, and shall be interpreted construed and administered in accordance with such intent. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service, as a short-term deferral, or as any other compensation that is otherwise exempt from Section 409A shall be treated as excluded from Section 409A to the maximum extent possible. Any payments to be made under this Agreement upon a termination of Executive’s employment that are deemed to constitute non-qualified deferred compensation subject to Section 409A shall only be made if such termination of employment constitutes a “separation from service” under Section 409A. Notwithstanding any provision of in this Agreement to the contrary, if any payment or benefit provided for herein would be subject to additional taxes and interest under Section 409A if Executive’s receipt of such payment or benefit is not delayed until the Company determines earlier of (i) the date of Executive’s death or (ii) the date that any compensation is six (6) months after the Date of Termination of Executive’s employment hereunder (such applicable date, the “Section 409A Payment Date”), then such payment or benefits payable benefit shall not be provided to Executive (or Executive’s estate, if applicable) until the Section 409A Payment Date. Each payment under this Agreement may is intended to be subject to a “separate payment” and not one of a series of payments for purposes of Section 409A409A. Notwithstanding the foregoing, the Company does not guarantee any particular tax effect, and Executive shall work be solely responsible and liable for the satisfaction of all taxes, penalties and interest that may be imposed on or for the account of Executive in good faith connection with the Executive to adopt such amendments to this Agreement or adopt other policies (including, but not limited to, any taxes, penalties and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes interest under Section 409A), including without limitation, actions intended to (i) exempt and neither the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other actionCompany, nor any of its affiliates, shall the Company have any liability for failing obligation to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement indemnify or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) hold Executive (or any other applicable exception beneficiary) harmless from any or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period orall taxes, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Servicepenalties or interest. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. This Agreement is intended, to the greatest extent permitted under law, to comply with the short-term deferral exemption and the separation pay exemption provided in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other interpretative guidance issued thereunder (i“Section 409A”) such that no benefits or payments under this Agreement are subject to Section 409A. Notwithstanding anything herein to the contrary, the timing of any payments under this Agreement shall be made consistent with such exemption. Executive’s right to receive a series of installment payments under this Agreement, if any, shall be treated as a right to receive a series of separate payments. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A, including without limitation any such regulations or other guidance that may be issued after the Termination Date. Notwithstanding any provision of this Agreement to the contrary, if in the event that the Company determines that any compensation or benefits amounts payable under this Agreement hereunder may be subject to Section 409A, the Company shall work may, to the extent permitted under Section 409A cooperate in good faith with the Executive to adopt such amendments to this Agreement or adopt other appropriate policies and procedures (procedures, including amendments, amendments and policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) paragraph shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided payable pursuant to the Executive under this Agreement are deemed to constitute compensation subject to the Executive to which Treasury Regulation provisions of Section 1.409A-3(i)(1)(iv) would apply409A, such amounts reimbursements shall be paid or reimbursed reasonably promptly, but not to Executive no later than December 31 of the year following the year in which the expense was incurred. The , the amount of any such payments eligible for reimbursement expenses reimbursed in one year shall not affect the payments or expenses that are amount eligible for payment or reimbursement in any other taxable subsequent year, and the Executive’s right to such payments or reimbursement of any such expenses shall under this Agreement will not be subject to liquidation or exchange for any other another benefit.. SV\1416236.2

Section 409A of the Code. (i) To the extent applicable, this Agreement shall required to be interpreted in accordance compliance with Section 409A. Notwithstanding 409A of the Code, and the regulations promulgated thereunder (together, “Section 409A”), notwithstanding any other provision of this Agreement the Plan, (a) any payment or benefit to which a Participant is eligible with respect to the contrary2023 LTIP, if the Company determines that any compensation or benefits payable under this Agreement may be subject to including a Participant who is a “specified employee” as defined in Section 409A, shall be adjusted or delayed and (b) any term of the Company shall work 2023 LTIP may be adjusted in good faith such manner as to comply with Section 409A and maintain the Executive intent of the 2023 LTIP to adopt such amendments the maximum extent possible. More specifically, to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take the extent any other actions, that payment provided to a Participant under the Company determines are necessary or appropriate to avoid the imposition of taxes 2023 LTIP constitutes non exempted deferred compensation under Section 409A409A and the Participant is at the time of the Participant’s Termination of Employment considered to be a “specified employee” pursuant to the Company’s policy for determining such employees, including without limitationthe payment of any such non exempted amount and the provision of such non exempted benefits will be delayed for six months following the Participant’s separation from service. Notwithstanding the foregoing, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) Delta shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right any Participant or any other person if any payment is determined to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed constitute “nonqualified deferred compensation” subject to within the meaning of Section 409A and does not satisfy the additional conditions applicable to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to under Section 409A 409A. You and Delta, each intending to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided bound legally, agree to the Executive under matters set forth above by signing this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would applyAgreement, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 all as of the year following the year in which the expense was incurreddate set forth below. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable yearDELTA AIR LINES, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.INC. By: Name: Xxxxxx Xxxxxxx Title: Vice President—Total Rewards PARTICIPANT [PARTICIPANT] Date:

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive Employee to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive Employee under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vii) hereof, are deemed to constitute compensation to the Executive Employee to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the ExecutiveEmployee’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. It is the intention of the parties that all payments and benefits under this Agreement be exempt from, or if not so exempt, comply with Section 409A of the Internal Revenue Code of 1986, as amended, and any guidance issued thereunder (i) To the extent applicable“Code”), this and the Agreement shall be interpreted interpreted, operated and administered accordingly. Notwithstanding anything in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if Executive is considered a “specified employee” or “key employee” of the Company determines that any compensation and has experienced a “separation from service,” each within the meaning of Section 409A of the Code, no payments or benefits payable under this Agreement may that are considered deferred compensation shall be subject made to Executive prior to the date that is six (6) months after the date of Executive’s “separation from service” (or, if earlier, the Executive’s date of death). The Company shall indemnify the Executive if the Executive incurs additional tax under Section 409A409A of the Code as a result of a violation of Section 409A of the Code (each an “Indemnified Section 409A Violation”) that occurs as a result of (1) the Company’s clerical error (other than an error caused by erroneous information provided to the Company by the Executive), (2) the Company’s failure to administer this Agreement or any benefit plan or program in accordance with its written terms (such written terms, the “Plan Document”), or (3) following December 31, 2008, the Company’s failure to maintain the Plan Documents in compliance with Section 409A of the Code; provided, that the indemnification set forth in clause (3) shall not be available to the Executive if (x) the Company has made a reasonable, good faith attempt to maintain the applicable Plan Document in compliance with Code Section 409A but has failed to do so or (y) the Company has maintained the applicable Plan Document in compliance with Section 409A of the Code but subsequent issuance by the Internal Revenue Service or the Department of the Treasury of interpretive authority results in the applicable Plan Document not (or no longer) complying with Section 409A of the Code (except that, if the Company is permitted by such authority or other authority to amend the Plan Document to bring the Plan Document into compliance with Section 409A of the Code and fails to do so, then such indemnification shall be provided). (i) In the event of an Indemnified Section 409A Violation, the Company shall work in good faith with reimburse the Executive for (1) the 20% additional income tax described in Section 409A(a)(1)(B)(i)(II) of the Code (to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effectthe extent that the Executive incurs the 20% additional income tax as a result of the Indemnified Section 409A Violation), and (2) any interest or take any other actionspenalty that is assessed with respect to the Executive’s failure to make a timely payment of the 20% additional income tax described in clause (1), provided that the Company determines Executive pays the 20% additional income tax promptly upon being notified that the tax is due (the amounts described in clause (1) and clause (2) are necessary or appropriate referred to avoid collectively as the imposition of taxes under “Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so409A Tax”). (ii) Any right to a series In addition, in the event of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to an Indemnified Section 409A Violation, the Company shall make a payment (the “Section 409A Gross-Up Payment”) to the Executive such that the net amount the Executive retains, after paying any federal, state, or local income tax or FICA tax on the Section 409A Gross-Up Payment, shall be equal to the Section 409A Tax. The Executive shall reasonably cooperate with measures identified by the Company that are intended to mitigate the Section 409A Tax to the extent provided in that such measures do not materially reduce or delay the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided benefits to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefithereunder.

Section 409A of the Code. This Agreement is intended, to the greatest extent permitted under applicable law, to comply with the short-term deferral exemption and the separation pay exemption provided in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other interpretative guidance issued thereunder (i“Section 409A”) such that no payments or benefits provided under this Agreement are subject to Section 409A. Notwithstanding anything herein to the contrary, the timing of any payments under this Agreement shall be made consistent with such exemption. Executive’s right to receive a series of installment payments under this Agreement, if any, shall be treated as a right to receive a series of separate payments. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A, including without limitation any such regulations or other guidance that may be issued after the Separation Date. Notwithstanding any provision of this Agreement to the contrary, if in the event that the Company determines that any compensation or benefits amounts payable under this Agreement hereunder may be subject to Section 409A, the Company shall work may, to the extent permitted under Section 409A cooperate in good faith with the Executive to adopt such amendments to this Agreement or adopt other appropriate policies and procedures (procedures, including amendments, amendments and policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) 13 shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided payable pursuant to the Executive under this Agreement are deemed to constitute compensation subject to the Executive to which Treasury Regulation provisions of Section 1.409A-3(i)(1)(iv) would apply409A, such amounts reimbursements shall be paid or reimbursed reasonably promptly, but not to Executive no later than December 31 of the year following the year in which the expense was incurred. The , the amount of any such payments eligible for reimbursement expenses reimbursed in one year shall not affect the payments or expenses that are amount eligible for payment or reimbursement in any other taxable subsequent year, and the Executive’s right to such payments or reimbursement of any such expenses shall under this Agreement will not be subject to liquidation or exchange for any other another benefit.

Section 409A of the Code. The intent of the Company is that payments and benefits under this Agreement comply with Section 409A of the Code and the regulations and guidance promulgated thereunder (i) To except to the extent applicableexempt as short-term deferrals or otherwise) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in accordance with Section 409A. Notwithstanding any provision compliance therewith. It is intended that each installment, if any, of the payments and benefits, if any, provided to you pursuant to the terms and conditions of this Agreement shall be treated as a separate “payment” for purposes of Section 409A of the Code. The Company shall not have the right to accelerate or defer the delivery of any such payments or benefits except to the contrary, if extent specifically permitted or required by Section 409 of the Company determines that any compensation or Code. All reimbursements and in-kind benefits payable provided to you under this Agreement may shall be subject to Section 409A, the Company shall work made or provided in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply accordance with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company Code to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment that such reimbursements or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” in-kind benefits are subject to Section 409A to of the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) Code. All expenses or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A reimbursements paid pursuant hereto that are subject taxable income to execution you shall in no event be paid later than the end of a waiver and release which may be executed and/or revoked in a the calendar year next following the calendar year in which the payment event (you incur such expense or pays such related tax. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to permitted by Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 of the year following Code, (i) the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments reimbursement or reimbursement of any such expenses in-kind benefits shall not be subject to liquidation or exchange for another benefit and (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other benefittaxable year.

Section 409A of the Code. (i) To the extent applicable, it is intended that this Agreement and the Plan comply with the provisions of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) do not apply to the Participant. This Agreement and the Plan shall be interpreted administered in accordance a manner consistent with this intent. Reference to Section 409A. 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any regulations, or any other formal guidance, promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. Notwithstanding any provision of anything in this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, Participant is a “specified employee” (within the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements meaning of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt Code) and any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments payment made pursuant to this Agreement is considered to be treated a “deferral of compensation” (as a such phrase is defined for purposes of Section 409A of the Code) that is payable upon the Participant’s “separation from service” (within the meaning of Section 409A of the Code), then the payment date for the shares of Stock underlying the vested RSUs, if any, that would have otherwise been made in the first six (6) months following the Participant’s “separation from service” shall be the date that is the first day of the seventh month after the date of the Participant’s “separation from service” with the Company or an Affiliate (determined in accordance with Section 409A of the Code) or upon the Participant’s death, if earlier. In addition, if the event triggering the Participant’s right to receive payment of shares of Stock hereunder is the Participant’s termination of employment, but such termination of employment does not constitute a series “separation from service” with the Company or an Affiliate within the meaning of separate payments. To Section 409A of the extent permitted Code, then the payment hereunder payable by reason of such termination of employment that is considered to be a “deferral of compensation” under Section 409A, any separate payment or benefit under this Agreement or otherwise 409A of the Code shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (paid upon such as termination of employment) occurs , but instead, shall commence payment only in remain an obligation of the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided Company to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts Participant and shall be paid or reimbursed reasonably promptly, but not later than December 31 provided to the Participant upon the first to occur of the year following events: (a) the year in which Participant’s “separation from service” (within the expense was incurred. The amount meaning of any such payments eligible for reimbursement in one year shall not affect Section 409A of the payments Code); or expenses that are eligible for payment or reimbursement in any other taxable year, and (b) the ExecutiveParticipant’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitdeath.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d12(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) i. Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) ii. To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) i. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) . Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon Employee’s “separation from service” from the Executive’s Company (within the meaning of Section 409A, a “Separation from Service”). (iii) . To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. For purposes of this Agreement, “Section 409A” means Section 409A of the Code and the Treasury Regulations promulgated thereunder (iand such other Treasury or Internal Revenue Service guidance) To as in effect from time to time. The parties intend that any amounts payable hereunder will be either exempt from Section 409A, or if such payments could constitute “deferred compensation” within the extent applicablemeaning of Section 409A, compliant with Section 409A. Each payment under this Agreement shall be treated as a separate payment, including payments made in installments. Notwithstanding the foregoing, the Executive acknowledges and agrees that she shall be solely responsible for, any taxes or penalties that may be imposed on the Executive under Section 409A with respect to the Executive’s receipt of payments hereunder; provided, that nothing in this Section 16 shall be construed as a waiver by the Executive of any claims she may have against the Company related to any operational failures by the Company which are finally determined to be the cause of any such taxes or penalties under Section 409A. This Agreement shall be administered and interpreted in accordance a manner consistent with this intent. Consistent with that intent, and to the extent required under Section 409A, for benefits that are to be paid in connection with a termination of employment, “termination of employment” shall be limited to such a termination that constitutes a “separation from service” under Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Executive is a “specified employee,” determined pursuant to procedures adopted by the Company determines that in compliance with Section 409A, on the date of her separation from service (within the meaning of Treasury Regulation section 1.409A-1(h)) and if any compensation portion of the payments or benefits payable under this Agreement may to be received by the Executive upon her termination of employment would constitute a “deferral of compensation” subject to Section 409A, then to the Company shall work in good faith extent necessary to comply with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits amounts that would otherwise be payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is during the six-month period immediately following the Executive’s termination of employment shall instead be paid or made available on the earlier of (i) the first business day of the seventh month after the date of the Executive’s termination of employment, or (ii) the Executive’s death. For purposes of application of Section 409A, to the extent applicable, each payment made under this Agreement shall be treated as a right separate payment. Notwithstanding any provision of this Agreement to a series of separate payments. To the contrary, to the extent permitted under Section 409A, any separate payment reimbursement or in-kind benefit provided under this Agreement or otherwise shall not be deemed “is nonqualified deferred compensation” subject compensation within the meaning of Section 409A: (i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to Section 409A to the extent provided be provided, in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception taxable year; (ii) the reimbursement of an eligible expense must be made on or provision before the last day of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a the calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. expense was incurred; and (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments reimbursement or reimbursement of any such expenses shall in-kind benefits is not be subject to liquidation or exchange for any other another benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vii) hereof, are deemed to constitute compensation to the Executive to which Treasury Regulation Regulation Section 1.409A-3(i)(1)(iv1. 409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (ia) To The parties hereto intend that all payments and benefits to be made or provided to Executive hereunder and under any Plan (as defined in clause (g) below) will either be exempt from Section 409A (as defined in clause (g) below) or be paid or provided in compliance with all applicable requirements of Section 409A, and the provisions of this Agreement and of each Plan (to the extent applicable, this Agreement they relate to Executive’s entitlements under such Plan) shall be interpreted construed and administered in accordance with Section 409A. Notwithstanding such intent. In furtherance of the foregoing, the provisions set forth below shall apply notwithstanding any other provision in this Agreement, or (where applicable) any provision of this Agreement in any Plan, to the contrary. (b) All payments to be made to Executive hereunder or under any Plan, if to the Company determines that any extent they constitute a deferral of compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A (after taking into account all exclusions applicable to such payments under Section 409A; provided), howevershall be made no later, that this Section 11(d) and shall not create an obligation on be made any earlier, than at the part of the Company time or times specified herein or in any Plan for such payments to adopt any such amendmentbe made, policy except as otherwise permitted or procedure or take any such other action, nor shall the Company have any liability for failing to do so.required under Section 409A. (iic) Any right to a series The date of installment payments pursuant to this Agreement is to Executive’s “separation from service”, as defined in Section 409A (and as determined by applying the default presumptions in Treas. Reg. §1.409A-1(h)(1)(ii)), shall be treated as a right to a series the date of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as his termination of employment) occurs shall commence employment for purposes of determining the time of payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, of any amount that becomes payable to Executive hereunder and under any Plan upon his termination of employment and that is properly treated as necessary to comply with Section 409A. All payments a deferral of nonqualified deferred compensation subject to Section 409A after taking into account all exclusions applicable to be made upon a termination of employment such payment under this Agreement may only be made upon the Executive’s Separation from Service.Section 409A. (iiid) To the extent that any payments payment or reimbursements provided delivery otherwise required to be made to Executive hereunder or under any Plan on account of his separation from service is properly treated as a deferral of compensation subject to Section 409A after taking into account all exclusions applicable to such payment and delivery under Section 409A, and if the Executive is a “specified employee” under this Agreement are deemed to constitute compensation to Section 409A at the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(ivtime of his separation from service, then such payment and delivery shall not be made until the first business day after the earlier of (i) would applythe expiration of six months from the date of Executive’s separation from service, or (ii) the date of his death (such amounts first business day, the “Delayed Payment Date”). On the Delayed Payment Date, there shall be paid or reimbursed reasonably promptlydelivered to the Executive or, but not later than December 31 if he has died, to his estate, in a single payment or delivery (as applicable) all entitlements so delayed, and in the case of cash payments, in a single cash lump sum, an amount equal to aggregate amount of all payments delayed pursuant to the preceding sentence, plus interest thereon at the Delayed Payment Interest Rate (as defined below) computed from the date on which each such delayed payment otherwise would have been made to Executive until the Delayed Payment Date. For purposes of the year following foregoing, the year “Delayed Payment Interest Rate” shall mean the national average annual rate of interest payable on jumbo six-month bank certificates of deposit, as quoted in which the expense was incurred. business section of the most recently published Sunday edition of The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and New York Times preceding the Executive’s right to such payments or reimbursement date of any such expenses shall not be subject to liquidation or exchange for any other benefittermination.

Section 409A of the Code. (i) To the extent applicable, It is intended that any amounts payable under this Agreement shall be interpreted in accordance will comply with Section 409A. 409A of the Code and the regulations relating thereto so as not to subject the Executive to the payment of interest, tax, and penalties which may be imposed under Section 409A of the Code. Accordingly, the Executive and Centers agree to use reasonable best efforts to cooperate, including by restructuring the timing of payments under this Agreement, to avoid the imposition of any additional interest, tax, or penalty charge under Section 409A of the Code in respect of payments to the Executive under this Agreement. Notwithstanding any provision of anything in this Agreement to the contrary, (i) if upon the Company determines that employment termination date, the Executive is a “specified employee” as defined in Section 409A of the Code and the deferral of the commencement of any compensation payments or benefits otherwise payable under this Agreement may be subject to Section 409A, the Company shall work hereunder as a result of such separation from service is necessary in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate order to avoid the imposition on the Executive of taxes any tax or penalty, including interest, under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt Code, then Centers will defer the commencement of any such amendment, policy payments or procedure benefits hereunder (without any reduction in such payments or take any such other action, nor shall benefits ultimately paid or provided to the Company have any liability for failing to do so. Executive) until the date that is six (ii6) Any right to a series of installment payments pursuant to this Agreement months following the Executive’s separation from service with Centers (or the earliest date as is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code) and Centers will make all applicable payments that have accrued during such six (6) month period in a lump sum to the Executive following the expiration of such period. In no event whatsoever shall GNC or any of their Affiliates be liable for any additional tax, any separate payment interest or benefit under this Agreement or otherwise shall not penalties that may be deemed “nonqualified deferred compensation” subject to imposed on the Executive by Section 409A to of the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) Code or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary damages for failing to comply with Section 409A. All payments 409A of nonqualified deferred compensation subject the Code other than for withholding obligations or other obligations applicable to employers, if any, under Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitCode.

Section 409A of the Code. (i) To The Plan is intended to comply with the extent applicable, this Agreement applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent. To the extent that any Award is subject to Section 409A. 409A of the Code, it shall be paid in a manner that will comply with Section 409A of the Code, including proposed, temporary or final regulations or any other guidance issued by the Secretary of the Treasury and the Internal Revenue Service with respect thereto. Notwithstanding any provision of this Agreement anything herein to the contrary, any provision in the Plan that is inconsistent with Section 409A of the Code shall be deemed to be amended to comply with Section 409A of the Code and to the extent such provision cannot be amended to comply therewith, such provision shall be null and void. The Company shall have no liability to a Participant, or any other party, if an Award that is intended to be exempt from, or compliant with, Section 409A of the Code is not so exempt or compliant or for any action taken by the Committee or the Company determines and, in the event that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment amount or benefit under this Agreement the Plan becomes subject to penalties under Section 409A of the Code, responsibility for payment of such penalties shall rest solely with the affected Participants and not with the Company. Notwithstanding any contrary provision in the Plan or otherwise shall not be deemed Award Agreement, any payment(s) of “nonqualified deferred compensation” (within the meaning of Section 409A of the Code) that are otherwise required to be made under the Plan to a “specified employee” (as defined under Section 409A of the Code) as a result of such employee’s separation from service (other than a payment that is not subject to Section 409A to of the extent provided in Code) shall be delayed for the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9first six (6) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year months following the calendar year in which the payment event such separation from service (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicableearlier, release revocation period ends, as necessary to comply with Section 409A. All payments the date of nonqualified deferred compensation subject to Section 409A to be made upon a termination death of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iiispecified employee) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts and shall instead be paid or reimbursed reasonably promptly, but not later than December 31 (in a manner set forth in the Award Agreement) upon expiration of the year following the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitdelay period.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with meet the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt any such amendmentInternal Revenue Code of 1986, policy or procedure or take any such other action, nor shall as amended (the Company have any liability for failing to do so. (ii“Code”) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided applicable, the Parties intend to administer this Agreement in a manner that is consistent with those requirements or an exception thereto, and this Agreement shall be construed and interpreted in accordance with such intent. Any payments that are considered deferred compensation under Section 409A of the exceptions Code and that are paid to a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(b)(4409A of the Code) upon separation from service shall be subject to a six (6) month delay, if required by Section 409A of the Code. If required by Section 409A of the Code, any amounts otherwise payable during the six (6) month period that commences on and follows the Employee’s termination date shall be paid in one lump sum amount on the first payroll date following the six (6) month period following the Employee date of termination (or within thirty (30) days of the Employee’s death, if earlier), Section 1.409A-1(b)(9) or any other applicable exception or provision . For purposes of Section 409A. Any 409A of the Code, all payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” (within the Executive’s Separation from Service. (iii) To meaning of such term under Section 409A of the extent that any payments or reimbursements provided to the Executive Code). Each payment made under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid treated as a separate payment. In no event shall the Employee, directly or reimbursed reasonably promptlyindirectly, but not later than December 31 designate the calendar year of a payment. All reimbursements under this Agreement shall be provided in a manner that complies with Section 409A of the year following Code, if applicable. If required by regulations or other guidance issued under Section 409A of the year in which Code or a court of competent jurisdiction, the expense was incurred. The amount of any provisions regarding payments hereunder shall be amended to provide for such payments eligible for reimbursement in one year shall not affect to be made at the payments time allowed under such regulations, guidance or expenses authority that are eligible for payment or reimbursement in any other taxable year, and most closely achieves the Executive’s right to such payments or reimbursement intent of any such expenses shall not be subject to liquidation or exchange for any other benefit.this Agreement. ​

Section 409A of the Code. (i) To It is intended that this Agreement shall comply with the provisions of Section 409A of the Code and the Treasury regulations relating thereto, or an exemption to Section 409A of the Code, and payments, rights and benefits may only be made, satisfied or provided under this Agreement upon an event and in a manner permitted by Section 409A of the Code, to the extent applicable, so as not to subject Executive to the payment of taxes and interest under Section 409A of the Code. In furtherance of this intent, this Agreement shall be interpreted interpreted, operated and administered in accordance a manner consistent with these intentions. Terms defined in this Agreement shall have the meanings given to such terms under Section 409A of the Code if and to the extent required in order to comply with Section 409A. Notwithstanding any provision 409A of this Agreement the Code. No payments to the contrary, if the Company determines that any compensation or benefits payable be made under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement accelerated or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated deferred except as a right to a series of separate payments. To the extent specifically permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to of the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) Code. To the extent that any payments regulations or reimbursements provided other guidance issued under Section 409A of the Code would result in the Executive being subject to payment of additional income taxes or interest under Section 409A of the Code, the parties agree to amend this Agreement to maintain to the Executive maximum extent practicable the original intent of this Agreement while avoiding the application of such taxes or interest under Section 409A of the Code. Any payments that qualify for the “short-term deferral” exception or another exception under Section 409A of the Code shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Agreement are deemed to constitute shall be treated as a separate payment of compensation for purposes of applying the Section 409A of the Code deferral election rules and the exclusion under Section 409A of the Code for certain short-term deferral amounts. Any amounts payable solely on account of an involuntary termination shall be excludable from the requirements of Section 409A of the Code, either as separation pay or as short-term deferrals to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would applymaximum possible extent. In no event may the Executive, such amounts shall be paid directly or reimbursed reasonably promptlyindirectly, but not later than December 31 of designate the calendar year following the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitunder this Agreement.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with meet the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt any such amendmentInternal Revenue Code of 1986, policy or procedure or take any such other action, nor shall as amended (the Company have any liability for failing to do so. (ii“Code”) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided applicable, the Parties intend to administer this Agreement in a manner that is consistent with those requirements or an exception thereto, and this Agreement shall be construed and interpreted in accordance with such intent. Any payments that are considered deferred compensation under Section 409A of the exceptions Code and that are paid to a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(b)(4409A of the Code) upon separation from service shall be subject to a six (6) month delay, if required by Section 409A of the Code. If required by Section 409A of the Code, any amounts otherwise payable during the six (6) month period that commences on and follows the Employee’s termination date shall be paid in one lump sum amount on the first payroll date following the six (6) month period following the Employee date of termination (or within thirty (30) days of the Employee’s death, if earlier), Section 1.409A-1(b)(9) or any other applicable exception or provision . For purposes of Section 409A. Any 409A of the Code, all payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” (within the Executive’s Separation from Service. (iii) To meaning of such term under Section 409A of the extent that any payments or reimbursements provided to the Executive Code). Each payment made under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid treated as a separate payment. In no event shall the Employee, directly or reimbursed reasonably promptlyindirectly, but not later than December 31 designate the calendar year of a payment. All reimbursements under this Agreement shall be provided in a manner that complies with Section 409A of the year following Code, if applicable. If required by regulations or other guidance issued under Section 409A of the year in which Code or a court of competent jurisdiction, the expense was incurred. The amount of any provisions regarding payments hereunder shall be amended to provide for such payments eligible for reimbursement in one year shall not affect to be made at the payments time allowed under such regulations, guidance or expenses authority that are eligible for payment or reimbursement in any other taxable year, and most closely achieves the Executive’s right to such payments or reimbursement intent of any such expenses shall not be subject to liquidation or exchange for any other benefit.this Agreement. ​ ​ ​ ​

Section 409A of the Code. For purposes of this Agreement, “Section 409A” means Section 409A of the Code and the Treasury Regulations promulgated thereunder (iand such other Treasury or Internal Revenue Service guidance) To as in effect from time to time. The parties intend that any amounts payable hereunder will be either exempt from Section 409A, or if such payments could constitute “deferred compensation” within the extent applicablemeaning of Section 409A, compliant with Section 409A. Notwithstanding the foregoing, the Executive acknowledges and agrees that she shall be solely responsible for, any taxes or penalties that may be imposed on the Executive under Section 409A with respect to the Executive’s receipt of payments hereunder; provided, that nothing in this Section 16 shall be construed as a waiver by the Executive of any claims she may have against the Company related to any operational failures by the Company which are finally determined to be the cause of any such taxes or penalties under Section 409A. This Agreement shall be administered and interpreted in accordance a manner consistent with this intent. Consistent with that intent, and to the extent required under Section 409A, for benefits that are to be paid in connection with a termination of employment, “termination of employment” shall be limited to such a termination that constitutes a “separation from service” under Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Executive is a “specified employee,” determined pursuant to procedures adopted by the Company determines that in compliance with Section 409A, on the date of her separation from service (within the meaning of Treasury Regulation section 1.409A-1(h)) and if any compensation portion of the payments or benefits payable under this Agreement may to be received by the Executive upon her termination of employment would constitute a “deferral of compensation” subject to Section 409A, then to the Company shall work in good faith extent necessary to comply with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits amounts that would otherwise be payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is during the six-month period immediately following the Executive’s termination of employment shall instead be paid or made available on the earlier of (i) the first business day of the seventh month after the date of the Executive’s termination of employment, or (ii) the Executive’s death. For purposes of application of Section 409A, to the extent applicable, each payment made under this Agreement shall be treated as a right separate payment. Notwithstanding any provision of this Agreement to a series of separate payments. To the contrary, to the extent permitted under Section 409A, any separate payment reimbursement or in-kind benefit provided under this Agreement or otherwise shall not be deemed “is nonqualified deferred compensation” subject compensation within the meaning of Section 409A: (i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to Section 409A to the extent provided be provided, in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception taxable year; (ii) the reimbursement of an eligible expense must be made on or provision before the last day of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a the calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. expense was incurred; and (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments reimbursement or reimbursement of any such expenses shall in-kind benefits is not be subject to liquidation or exchange for any other another benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (iA) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (iiB) comply with the requirements of Section 409A; provided, however, that this Section 11(d10(l) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any 409A. (iii) Notwithstanding anything herein to the contrary, to the extent any payments to the Executive pursuant to Sections 4(a)(i)(B), 4(a)(ii) and 4(a)(iv) are treated as “nonqualified deferred compensation” subject to Section 409A that are subject 409A, then (A) no amount shall be payable pursuant to execution of a waiver and release which may be executed and/or revoked in a calendar year following such section unless the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a Executive’s termination of employment under constitutes a “separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), and (B) if the Executive, at the time of his Separation from Service, is determined by the Company to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code and the Company determines that delayed commencement of any portion of the termination benefits payable to the Executive pursuant to this Agreement may only is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (any such delayed commencement, a “Payment Delay”), then such portion of the Executive’s termination benefits described in Sections 4(a)(i)(B), 4(a)(ii) and 4(a)(iv) shall not be made upon provided to the Executive prior to the earlier of (A) the expiration of the six-month period measured from the date of the Executive’s Separation from Service., (B) the date of the Executive’s death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to the Executive within ten (10) days following such expiration, and any remaining payments due under the Agreement shall be paid as otherwise provided herein. The determination of whether the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his Separation from Service shall made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto). US-DOCS\93731500.3 (iiiiv) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (v) In the event that the amounts payable under Sections 4(a)(i)(B), 4(a)(ii) and 4(a)(iv) are subject to Section 409A and the timing of the delivery of the Executive’s Release could cause such amounts to be paid in one or another taxable year, then notwithstanding the payment timing set forth in such sections, such amounts shall not be payable until the later of (A) the payment date specified in such section or (B) the first business day of the taxable year following the Executive’s Separation from Service.

Section 409A of the Code. If the Employee is deemed a "specified employee" within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Employee becomes eligible for settlement of the Performance Shares upon his/her "separation from service" within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to date that is six months following the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies Employee's separation from service and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) the Employee's death. It is the intent that this Performance Share Award shall comply with the requirements of Section 409A, and any ambiguities herein will be interpreted to so comply. The Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify this Agreement as may be necessary to ensure that all vesting or payouts provided under this Agreement are made in a manner that complies with Section 409A or to mitigate any additional tax, interest and/or penalties or other adverse tax consequences that may apply under Section 409A if compliance is not practical; provided, however, that nothing in this Section 11(d) shall not create paragraph creates an obligation on the part of the Company to adopt any such amendmentmodify the terms of this Agreement or the Plan, policy and the Company makes no representation that the terms of this Performance Share Award Agreement will comply with Section 409A or procedure that payments under this Performance Share Award Agreement will not be subject to taxes, interest and penalties or take any such other action, nor adverse tax consequences under Section 409A. In no event shall the Company have or any liability of its Subsidiaries be liable to any party for any additional tax, interest or penalties that may be imposed on the Employee by Section 409A or any damages for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.409A.

Section 409A of the Code. This Phantom Units Agreement is intended to be written, administered, interpreted and construed in a manner such that no payment or benefits provided under the Phantom Units Agreement become subject to (ia) To the gross income inclusion set forth within Section 409A(a)(1)(A) of the Code or (b) the interest and additional tax set forth within Section 409A(a)(1)(B) of the Code (collectively, “Section 409A Penalties”), including, where appropriate, the construction of defined terms to have meanings that would not cause the imposition of Section 409A Penalties. Notwithstanding anything to the contrary in this Phantom Units Agreement, to the maximum extent applicablepermitted by applicable law, the payments payable to Participant pursuant to this Phantom Units Agreement shall be interpreted made in accordance reliance upon Treasury Regulation Section 1.409A-1(b)(4) (relating to short-term deferrals). However, with Section 409A. Notwithstanding respect to any provision of this Agreement amounts payable to the contrary, if the Company determines that any compensation or benefits payable Participant under this Phantom Units Agreement may in connection with a termination of Participant’s service with Company that would be subject considered “non-qualified deferred compensation” under Section 409A of the Code, in no event shall a termination of service be considered to have occurred under this Phantom Units Agreement unless such termination constitutes the Participant’s “separation from service” with Company as such term is defined in Treasury Regulation Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect1.409A-1(h), or take and any other actionssuccessor provision thereto. For purposes of Section 409A of the Code (including, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), each payment that Participant may be eligible to (i) exempt the compensation and benefits payable receive under this Phantom Units Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right separate and distinct payment and shall not collectively be treated as a single payment. Notwithstanding anything to a series of separate payments. To the extent permitted under Section 409Acontrary contained in this Phantom Units Agreement, with respect to any separate payment or benefit amounts payable to Participant under this Phantom Units Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to during a specified period of time following the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution occurrence of a waiver payment event, the actual date of payment during such specified period will be determined by Company, in its sole and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Serviceabsolute discretion. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To This Agreement and the extent applicablepayment of the Performance Share Award are intended to be exempt from, this Agreement or comply with, the requirements of Section 409A of the Code and guidance issued thereunder and shall be interpreted in accordance with Section 409A. construed accordingly. Notwithstanding any provision of this Agreement anything to the contrarycontrary in this Agreement, if at the Company determines that time of the Employee’s termination of Employment, the Employee is a “specified employee,” as defined below, any compensation or benefits and all amounts payable under this Agreement may on account of such separation from service that constitute deferred compensation and would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6) month period or, if earlier, upon the Participant’s death; except (A) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b), as determined by the Company in its reasonable good faith discretion or (B) other amounts or benefits that are not subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided409A. For purposes of this Agreement, howeverall references to “termination of employment” and correlative phrases shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), that this Section 11(d) shall not create and the term “specified employee” means an obligation on the part of individual determined by the Company to adopt any such amendmentbe a specified employee under Treasury regulation Section 1.409A-1(i). Notwithstanding anything to the contrary in this Agreement, policy or procedure or take any such other actionneither the Company, nor shall any subsidiary, nor the Company have Committee, nor any liability for failing to do so. (ii) Any right to a series person acting on behalf of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409ACompany, any separate payment subsidiary, or benefit under the Committee, shall be liable to the Employee or to the estate or beneficiary of the Employee by reason of any acceleration of income, or any additional tax, asserted by reason of the failure of this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject any payment hereunder to satisfy the requirements of Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitCode.

Section 409A of the Code. (i) To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A of the Internal Revenue Code and the guidance promulgated thereunder (“Section 409A”). This Agreement shall be administered in a manner consistent with this intent, and any provision that would cause the Agreement to fail to satisfy Section 409A shall have no force and effect until amended by the parties to comply with Section 409A (which amendment may be retroactive to the extent permitted by Section 409A). Unless otherwise expressly provided, any payment of compensation by Company to Executive, whether pursuant to this Agreement or otherwise, shall be made no later than the 15th day of the third month (i.e., 2½ months) after the later of the end of the calendar year or the Company’s fiscal year in which Executive’s right to such payment vests (i.e., is not subject to a “substantial risk of forfeiture” for purposes of Code Section 409A). For purposes of this Agreement, “Separation from Service” shall have the meaning given to such term under Section 409A. Each payment and each installment of any severance payments provided for under this Agreement shall be interpreted in accordance with treated as a separate payment for purposes of application of Section 409A. Notwithstanding any provision of this Agreement to To the contrary, if the Company determines extent that any compensation severance payments come within the definition of “short term deferrals” or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes “involuntary severance” under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable such amounts shall be excluded from “deferred compensation” as allowed under this Agreement from Section 409A, and/or and shall not be subject to the following Section 409A compliance requirements. All payments of “nonqualified deferred compensation” (iiwithin the meaning of Section 409A) are intended to comply with the requirements of Section 409A; provided, howeverand shall be interpreted in accordance therewith. Neither party individually or in combination may accelerate, that this Section 11(d) shall not create an obligation on the part of the Company to adopt offset or assign any such amendmentdeferred payment, policy or procedure or take any such other action, nor except in compliance with Section 409A. No amount shall be paid prior to the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement earliest date on which it is permitted to be treated paid under Section 409A and Executive shall have no discretion with respect to the timing of payments except as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to which Section 409A that applies which are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employmentSeparation from Service) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, ends as necessary to comply with Section 409A. All In the event that Executive is determined to be a “key employee” (as defined and determined under Section 409A) of the Company at a time when its stock is deemed to be publicly traded on an established securities market, payments of determined to be “nonqualified deferred compensation compensation” payable upon separation from service shall be made no earlier than (i) the first day of the seventh (7th) complete calendar month following such termination of employment, or (ii) Executive’s death, consistent with the provisions of Section 409A. Any payment delayed by reason of the prior sentence shall be paid out in a single lump sum at the end of such required delay period in order to catch up to the original payment schedule. All expense reimbursement or in-kind benefits subject to Section 409A to be made upon a termination of employment provided under this Agreement may only or, unless otherwise specified in writing, under any Company program or policy, shall be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided subject to the Executive under this Agreement are deemed to constitute compensation to following rules: (i) the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(ivamount of expenses eligible for reimbursement or in-kind benefits provided during one calendar year may not affect the benefits provided during any other year; (ii) would apply, such amounts reimbursements shall be paid or reimbursed reasonably promptly, but not no later than December 31 the end of the calendar year following the year in which the expense was incurred. The amount of any Executive incurs such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable yearexpenses, and the Executive’s Executive shall take all actions necessary to claim all such reimbursements on a timely basis to permit the Company to make all such reimbursement payments prior to the end of said period, and (iii) the right to such payments reimbursement or reimbursement of any such expenses in-kind benefits shall not be subject to liquidation or exchange for another benefit. Notwithstanding anything herein to the contrary, no amendment may be made to this Agreement if it would cause the Agreement or any other benefit.payment hereunder not to be in compliance with Section 409A.

Section 409A of the Code. If the Employee is deemed a "specified employee" within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Employee becomes eligible for settlement hereunder upon his/her "separation from service" within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to date that is six months following the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies Employee's separation from service and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) the Employee's death. It is the intent that this Performance Cash Award shall comply with the requirements of Section 409A, and any ambiguities herein will be interpreted to so comply. The Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify this Agreement as may be necessary to ensure that all vesting or payouts provided under this Agreement are made in a manner that complies with Section 409A or to mitigate any additional tax, interest and/or penalties or other adverse tax consequences that may apply under Section 409A if compliance is not practical; provided, however, that nothing in this Section 11(d) shall not create paragraph creates an obligation on the part of the Company to adopt any such amendmentmodify the terms of this Agreement or the Plan, policy and the Company makes no representation that the terms of this Performance Cash Award Agreement will comply with Section 409A or procedure that payments under this Performance Cash Award Agreement will not be subject to taxes, interest and penalties or take any such other action, nor adverse tax consequences under Section 409A. In no event shall the Company have or any liability of its Subsidiaries be liable to any party for any additional tax, interest or penalties that may be imposed on the Employee by Section 409A or any damages for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.409A.

Section 409A of the Code. (ia) To Amounts payable under this Agreement are intended either to be exempt from the extent applicablerules of Section 409A of the Code or to satisfy those rules and shall be construed accordingly. The Company shall not be liable to Employee with respect to any adverse tax consequences arising under Section 409A or other provision of the Code by reason of the operation of this Agreement or any benefit provided to Employee under any employee benefit plan sponsored or maintained by the Company, in either case, in accordance with its terms. For purposes of Section 409A, each payment under this Agreement will be deemed to be a separate payment as permitted under Treasury Regulation Section 1.409A-2(b)(2)(iii). (b) If any provision of this Agreement contravenes any regulations or Treasury guidance promulgated under Code Section 409A or could cause an amount payable hereunder to be subject to the interest and penalties under Code Section 409A, such provision of this Agreement shall be interpreted in accordance with deemed automatically modified to maintain, to the maximum extent practicable, the original intent of the applicable provision without violating the provisions of Code Section 409A. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “Separation from Service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean Separation from Service. (c) Notwithstanding any provision provisions of this Agreement to the contrary, if Employee is a “specified employee” (as such term is defined for purposes of Code Section 409A), no payment of amounts not exempt from Code Section 409A shall be made under Section 6(c) or 6(e) hereof prior to the six (6) month anniversary of Employee’s separation of service to the extent such six (6) month delay in payment is required to comply with Code Section 409A. To the extent that this Section 8(c) applies to any payment under Section 6(c) hereof (“Severance Payment”), and the actions described in this sentence do not cause adverse tax consequences to be imposed under the Code, the Company determines that shall, as soon as practicable following Employee’s termination of employment, and after Employee executes and does not revoke the General Release, deposit an amount equal to the gross amount of such Severance Payment into an irrevocable Rabbi Trust in the form prescribed by Internal Revenue Service Revenue Procedure 92-64. Such Rabbi Trust shall be established and maintained by the Company, at its own expense, pending the distribution of such amount to Employee under this Agreement. The Trustee shall be a financial institution selected by the Company and the Trustee shall invest all amounts deposited therein with the purpose of preserving the Trust principal. All principal and income from the Rabbi Trust shall be paid to Employee on the first day following the six-month anniversary of Employee’s Separation from Service. The Trustee shall withhold or cause to be withheld all withholding taxes as may be required by applicable law. Neither the Employee nor any of Employee’s creditors or beneficiaries shall have the right to subject any deferred compensation or benefits (within the meaning of Code Section 409A) payable under this Agreement may be subject to Section 409Aany anticipation, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement alienation, sale, transfer, assignment, pledge, encumbrance, attachment or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated garnishment. Except as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment deferred compensation (within the meaning of Section 409A) payable to the Employee or for Employee’s benefit under this Agreement or otherwise shall may not be deemed “nonqualified deferred compensation” subject to Section 409A reduced by, or offset against, any amount owing by the Employee to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) Company or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Serviceits Affiliates. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this This Award Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided409A of the Code and the regulations thereunder, howeverand the provisions of this Award Agreement shall be interpreted in a manner that satisfies the requirements of Section 409A of the Code, and this Award Agreement shall be operated accordingly. If any provision of this Award Agreement or any term or condition of the Award would otherwise conflict with this intent, the provision, term or condition shall be interpreted and deemed amended so as to avoid this conflict. Notwithstanding anything else in this Award Agreement, if the Board considers a Participant to be a “specified employee” under Section 409A of the Code at the time of such Participant’s “separation from service” (as defined in Section 409A of the Code), and the amount under the Award is “deferred compensation” subject to Section 409A of the Code any distribution that this Section 11(d) otherwise would be made to such Participant with respect to the Award as a result of such separation from service shall not create an obligation on be made until the part date that is six months after such separation from service, except to the extent that earlier distribution would not result in such Participant’s incurring interest or additional tax under Section 409A of the Company to adopt any such amendmentCode. If the Award includes a “series of installment payments” (within the meaning of Section 1.409A-2(b)(2)(iii) of the Treasury Regulations), policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any Participants’ right to a the series of installment payments pursuant to this Agreement is to shall be treated as a right to a series of separate paymentspayments and not as a right to a single payment. To Notwithstanding the extent permitted under Section 409Aforegoing, any separate payment or benefit the tax treatment of the benefits provided under this Award Agreement is not warranted or otherwise guaranteed, and in no event shall not the Company be deemed “nonqualified deferred compensation” subject to liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitCode.

Section 409A of the Code. This Agreement is intended, to the greatest extent permitted under law, to comply with the short-term deferral exemption and the separation pay exemption provided in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other interpretative guidance issued thereunder (i“Section 409A”) such that no benefits or payments under this Agreement are subject to Section 409A. Notwithstanding anything herein to the contrary, the timing of any payments under this Agreement shall be made consistent with such exemption. Executive’s right to receive a series of installment payments under this Agreement, if any, shall be treated as a right to receive a series of separate payments. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A, including without limitation any such regulations or other guidance that may be issued after the Separation Date. Notwithstanding any provision of this Agreement to the contrary, if in the event that the Company determines that any compensation or benefits amounts payable under this Agreement hereunder may be subject to Section 409A, the Company shall work may, to the extent permitted under Section 409A cooperate in good faith with the Executive to adopt such amendments to this Agreement or adopt other appropriate policies and procedures (procedures, including amendments, amendments and policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) paragraph shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided payable pursuant to the Executive under this Agreement are deemed to constitute compensation subject to the Executive to which Treasury Regulation provisions of Section 1.409A-3(i)(1)(iv) would apply409A, such amounts reimbursements shall be paid or reimbursed reasonably promptly, but not to Executive no later than December 31 of the year following the year in which the expense was incurred. The , the amount of any such payments eligible for reimbursement expenses reimbursed in one year shall not affect the payments or expenses that are amount eligible for payment or reimbursement in any other taxable subsequent year, and the Executive’s right to such payments or reimbursement of any such expenses shall under this Agreement will not be subject to liquidation or exchange for any other another benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions is intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with meet the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part 409A of the Company to adopt any such amendmentInternal Revenue Code of 1986, policy or procedure or take any such other action, nor shall as amended (the Company have any liability for failing to do so. (ii“Code”) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided applicable, the Parties intend to administer this Agreement in a manner that is consistent with those requirements or an exception thereto, and this Agreement shall be construed and interpreted in accordance with such intent. Any payments that are considered deferred compensation under Section 409A of the exceptions Code and that are paid to a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(b)(4409A of the Code) upon separation from service shall be subject to a six (6) month delay, if required by Section 409A of the Code. If required by Section 409A of the Code, any amounts otherwise payable during the six (6) month period that commences on and follows the Employee’s termination date shall be paid in one lump sum amount on the first payroll date following the six (6) month period following the Employee date of termination (or within thirty (30) days of the Employee’s death, if earlier), Section 1.409A-1(b)(9) or any other applicable exception or provision . For purposes of Section 409A. Any 409A of the Code, all payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” (within the Executive’s Separation from Service. (iii) To meaning of such term under Section 409A of the extent that any payments or reimbursements provided to the Executive Code). Each payment made under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid treated as a separate payment. In no event shall the Employee, directly or reimbursed reasonably promptlyindirectly, but not later than December 31 designate the calendar year of a payment. All reimbursements under this Agreement shall be provided in a manner that complies with Section 409A of the year following Code, if applicable. If required by regulations or other guidance issued under Section 409A of the year in which Code or a court of competent jurisdiction, the expense was incurred. The amount of any provisions regarding payments hereunder shall be amended to provide for such payments eligible for reimbursement in one year shall not affect to be made at the payments time allowed under such regulations, guidance or expenses authority that are eligible for payment or reimbursement in any other taxable year, and most closely achieves the Executive’s right to such payments or reimbursement intent of any such expenses shall not be subject to liquidation or exchange for any other benefit.this Agreement. ​ ​

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (iA) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (iiB) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vii) hereof, are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines parties determine are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so.409A. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All To the extent necessary to comply with Section 409A, all payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. If the Grantee is deemed a "specified employee" within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Grantee becomes eligible for settlement of the Performance Shares upon his/her "separation from service" within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to date that is six months following the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies Grantee's separation from service and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) the Grantee's death. It is the intent that this Performance Share Award shall comply with the requirements of Section 409A, and any ambiguities herein will be interpreted to so comply. The Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify this Agreement as may be necessary to ensure that all vesting or payouts provided under this Agreement are made in a manner that complies with Section 409A or to mitigate any additional tax, interest and/or penalties or other adverse tax consequences that may apply under Section 409A if compliance is not practical; provided, however, that nothing in this Section 11(d) shall not create paragraph creates an obligation on the part of the Company to adopt any such amendmentmodify the terms of this Agreement or the Plan, policy and the Company makes no representation that the terms of this Performance Share Award Agreement will comply with Section 409A or procedure that payments under this Performance Share Award Agreement will not be subject to taxes, interest and penalties or take any such other action, nor adverse tax consequences under Section 409A. In no event shall the Company have or any liability of its Subsidiaries be liable to any party for any additional tax, interest or penalties that may be imposed on the Grantee by Section 409A or any damages for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service17. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(41.409A‑1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vi) hereof, are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. This Agreement is intended, to the greatest extent permitted under law, to comply with the short-term deferral exemption and the separation pay exemption provided in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other interpretative guidance issued thereunder (i“Section 409A”) such that no benefits or payments under this Agreement are subject to Section 409A. Notwithstanding anything herein to the contrary, the timing of any payments under this Agreement shall be made consistent with such exemption. Executive’s right to receive a series of installment payments under this Agreement, if any, shall be treated as a right to receive a series of separate payments. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A, including without limitation any such regulations or other guidance that may be issued after the Retirement Date. Notwithstanding any provision of this Agreement to the contrary, if in the event that the Company determines that any compensation or benefits amounts payable under this Agreement hereunder may be subject to Section 409A, the Company shall work may, to the extent permitted under Section 409A cooperate in good faith with the Executive to adopt such amendments to this Agreement or adopt other appropriate policies and procedures (procedures, including amendments, amendments and policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) paragraph shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided payable pursuant to the Executive under this Agreement are deemed to constitute compensation subject to the Executive to which Treasury Regulation provisions of Section 1.409A-3(i)(1)(iv) would apply409A, such amounts reimbursements shall be paid or reimbursed reasonably promptly, but not to Executive no later than December 31 of the year following the year in which the expense was incurred. The , the amount of any such payments eligible for reimbursement expenses reimbursed in one year shall not affect the payments or expenses that are amount eligible for payment or reimbursement in any other taxable subsequent year, and the Executive’s right to such payments or reimbursement of any such expenses shall under this Agreement will not be subject to liquidation or exchange for any other another benefit.

Section 409A of the Code. The payments provided pursuant to this Agreement are intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (i) To “Section 409A”), including the extent applicableshort-term deferral and separation pay exceptions thereto, and this Agreement shall be interpreted construed and administered in accordance with such intent. Provided these exceptions to Section 409A. 409A apply as expected, neither the Company nor its affiliates will report any amounts payable in accordance with the terms of this Agreement or any plan or agreement referenced herein in box 12 of IRS Form W-2 using code Z. Notwithstanding any other provision of this Agreement to the contraryAgreement, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the Executive’s Separation maximum extent possible. For purposes of Section 409A, any installment payments provided under this Agreement shall each be treated as a separate payment. To the extent required under Section 409A, any payments to be made under this Agreement in connection with a termination of employment shall only be made if such termination constitutes a “separation from Service. (iii) To service” under Section 409A. If and to the extent that any payments payment under this Agreement is determined by the Company (1) to constitute “non-qualified deferred compensation” subject to Section 409A and (2) such payment must be delayed for six months from the Separation Date (or reimbursements provided an earlier date) in order to comply with Section 409A(a)(2)(B)(i) in order to prevent the imposition of any additional tax on the Executive under Section 409A, then the Company will delay making any such payment until the expiration of such six-month period (or, if earlier, Executive’s death). Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement are deemed to constitute compensation to comply with Section 409A and in no event shall the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall Company be paid liable for all or reimbursed reasonably promptly, but not later than December 31 of the year following the year in which the expense was incurred. The amount any portion of any such payments eligible for reimbursement in one year shall not affect the payments taxes, penalties, interest, or other expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement may be incurred by you on account of any such expenses shall not be subject to liquidation or exchange for any other benefit.non-compliance with Section 409A.

Section 409A of the Code. 1. It is intended that the provisions of this Agreement comply with Section 409A of the Code and the regulations and guidance promulgated thereunder (i) To the extent applicablecollectively, “Code Section 409A”), and all provisions of this Agreement shall be interpreted construed in accordance a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding 409A. 2. If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment shall be treated as a separate payment. 3. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “Separation from Service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean Separation from Service. 4. If Company is a Reporting Company and Executive is deemed on the contrarydate of termination of his employment to be a “specified employee”, if within the meaning of that term under Section 409A(a)(2)(B) of the Code and using the identification methodology selected by the Company determines that any compensation from time to time, or benefits payable under this Agreement may be subject to Section 409Aif none, the Company shall work in good faith with default methodology, then: a. With regard to any payment, the Executive to adopt such amendments to this Agreement providing of any benefit or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, distribution of equity upon separation from service that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed constitutes “nonqualified deferred compensation” subject to Code Section 409A 409A, such payment, benefit or distribution shall not be made or provided prior to the extent provided in earlier of (i) the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision expiration of Section 409A. Any payments subject to Section 409A that are subject to execution the six-month period measured from the date of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service.Service or (ii) the date of the Executive’s death; and b. On the first day of the seventh month following the date of Executive’s Separation from Service or, if earlier, on the date of his death, (iiix) To all payments delayed pursuant to this Section VIII.G.4 (whether they would otherwise have been payable in a single sum or in installments in the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(ivabsence of such delay) would apply, such amounts shall be paid or reimbursed reasonably promptlyto the Executive in a lump sum, but not later than December 31 and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal dates specified from them herein and (y) all distributions of equity delayed pursuant to this Section VIII.G.4 shall be made to Executive. c. In determining the year following amounts that are subject to the year in which six-month delay requirement described above, the expense was incurredCompany shall use all exclusions from the six-month delay rule that are available to the payments made to the Executive. 5. The amount of With regard to any such payments eligible provision herein that provides for reimbursement in one year shall not affect of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments reimbursement or reimbursement of any such expenses in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, of in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other benefittaxable year, provided that the foregoing clause (ii) shall not be violated without regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense occurred. This provision shall not apply to amounts due under Section III.E, which is intended to comply with the short-term deferral exemption under Section 409A and not the expense exemption therefrom. 6. 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 the Company. 7. The Company shall indemnify (on a basis which holds him harmless from any taxes, interest and penalties on such amounts and the amounts paid hereunder) Executive for the amount of any additional tax or interest which Executive becomes obligation to pay as a result of this Agreement or the payments provided for hereunder not satisfying the requirements of Section 409A (“Section 409A Penalties”), provided that Executive has timely complied with the Company’s reasonable request made in good faith to reform any noncompliant provision (it being understood by the parties that whenever the Company shall undertake to reform any provision of this Agreement to comply with Section 409A, it shall do so in a manner to maintain, to the maximum extent practicable, the original intent of the applicable provision without incurring any additional compensation expense as a result of such reformation). Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Executive of any Section 409A Penalties. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall fully apprise Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give Company any information which is in Executive’s possession reasonably requested by Company relating to such claim, (ii) take such action in connection with contesting such claim as Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Company, (iii) cooperate with Company in good faith in order to effectively contest such claim, and (iv) permit Company to participate in any proceedings relating to such claim. Company shall bear and pay directly all costs and expenses incurred in connection with such contest. Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Company shall determine. If Executive is required to extend the statute of limitations to enable Company to contest such claim, Executive may limit this extension solely to such contested amount. The payment rules for reimbursement of costs and expenses or in-kind benefits set forth in Section VIII.G.5 shall apply to payments made by the Company to Executive pursuant to this Section VIII.G.7., and all indemnity payments made by Company pursuant to this Section VIII.G.7 shall be made on or before the last day of Executive’s taxable year following the taxable year in which the right to indemnity under this Section VIII.G.7 arose. This indemnity obligation of the Company shall survive the Executive’s termination of employment.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted and applied consistent and in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may not be subject to either exempt from or compliant with Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work may in good faith with the Executive to its sole discretion adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code and/or preserve the intended tax treatment of such compensation and benefits, and/or or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d11(e)(i) shall does not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 9(c) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement Agreement, including, without limitation under Section 2(b)(vii) or 2(b)(viii), are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed to the Executive reasonably promptly, but not later than December 31 of the year following the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. It is the intention of the parties to this Agreement that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences to the Executive under Section 409A of the Code and Department of Treasury regulations and other interpretative guidance thereunder, including that issued after the date hereof (i) To the extent applicablecollectively, this “Section 409A”). The Agreement shall be interpreted in accordance to that end and, consistent with Section 409A. Notwithstanding that objective and notwithstanding any provision of this Agreement herein to the contrary, if Executive and the Company determines that any compensation or benefits payable under agree to amend this Agreement in order to avoid, if practicable, the application of such taxes or interest under Section 409A and in a manner to preserve the economic benefits of this Agreement from Executive’s perspective at no additional cost to the Company. Further, no effect shall be given to any provision herein in a manner that reasonably could be expected to give rise to adverse tax consequences under that provision. Although the Company shall consult with the Executive in good faith regarding implementation of this Section 26, neither the Company nor its employees or representatives shall have liability to the Executive with respect to any additional taxes that the Executive may be subject to Section 409A, in the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take event that any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable amounts under this Agreement from are determined to violate Section 409A, and/or (ii) comply 409A. For purposes of compliance with the requirements of Section 409A; provided, howeverand notwithstanding anything herein to the contrary, that this (i) no payment shall be made hereunder in connection with Executive’s termination of employment with the Company unless and until Executive has a “separation from service” with the Company and its affiliates, as defined under Section 11(d409A, and (ii) shall not create an obligation on the part each payment of compensation by the Company to adopt any such amendmentExecutive under this Agreement shall be treated as a separate payment, policy or procedure or take any such other action, nor shall and Executive’s entitlement to receive compensation from the Company have any liability for failing to do so. (ii) Any right to under this Agreement in a series of installment payments pursuant to this Agreement is to shall be treated as a right Executive’s entitlement to recover a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (a) The intent of the Parties is that payments and benefits under this Agreement comply with, or are exempt from, Section 409A of the Internal Revenue Code of 1986, as amended, and the rules, regulations and other guidance promulgated thereunder, each as may be amended from time to time (the “Code”). Accordingly, to the maximum extent permitted, all provisions of this Agreement will be construed and interpreted in a manner consistent with this intent. In the event that the Company determines that any amounts payable hereunder would otherwise be taxable to the Executive under Section 409A of the Code, the Company may adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Company determines in its discretion are necessary or appropriate to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes under such the same. To the extent that any provision hereof is modified in order to comply with Section 409A of the Code, such modification will be made in good faith and will, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company of the applicable provision without violating the provisions of Section 409A of the Code. In no event whatsoever will the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A of the Code or damages for failing to comply with Section 409A of the Code. (b) A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code. The Parties hereby acknowledge that they believe that the Executive will have experienced a “separation from service” within the meaning of Section 409A of the Code as of the Retirement Date. Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit that is considered deferred compensation under Section 409A of the Code payable on account of a “separation from service,” such payment or benefit will not be made or provided until the date that is the earlier of (i) the expiration of the six-month period measured from the date of such “separation from service” of the Executive, and (ii) the date of the Executive’s death, to the extent required under Section 409A of the Code. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 13 (whether they would have otherwise been payable in a single lump sum or in installments in the absence of such delay) will be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement will be paid or provided in accordance with the normal payment dates specified for them herein. (c) To the extent applicable, that reimbursements or other in-kind benefits under this Agreement shall constitute “nonqualified deferred compensation” for purposes of Section 409A of the Code, (i) all expenses or other reimbursements hereunder will be interpreted made on or before the last day of the taxable year following the taxable year in accordance which such expenses were incurred by the Executive, (ii) any right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year will in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. (d) For purposes of Section 409A of the Code, the Executive’s right to receive any installment payments pursuant to this Agreement is treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with Section 409A. reference to a number of days, the actual date of payment within the specified period is within the sole discretion of the Company. (e) Notwithstanding any provision of this Agreement to the contrary, if the Company determines that in no event will any compensation or benefits payable payment under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed constitutes “nonqualified deferred compensation” subject to for purposes of Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not Code be subject to liquidation or exchange for offset by any other benefitamount unless otherwise permitted by Section 409A of the Code.

Section 409A of the Code. (i) To It is intended that the extent applicableprovisions of this Agreement comply with Section 409A of the Code, and all provisions of this Agreement shall be construed and interpreted in accordance a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Notwithstanding any provision 409A of this Agreement to the contraryCode. If, if at the time of your separation from service (within the meaning of Section 409A of the Code), (i) you shall be a specified employee (within the meaning of Section 409A of the Code and using the identification methodology selected by the Company determines from time to time) and (ii) the Company shall make a good faith determination that any compensation or benefits an amount payable under this Agreement may or any other plan, policy, arrangement or agreement of or with the Company or Xxxxxx & Xxxxx Education, Inc. (this Agreement and such other plans, policies, arrangements and agreements, the “Company Plans”) constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of which is required to be subject delayed pursuant to the six-month delay rule set forth in Section 409A409A of the Code in order to avoid taxes or penalties under Section 409A of the Code, then the Company shall work in good faith with not pay any such amount on the Executive otherwise scheduled payment date but shall instead accumulate such amount and pay it, without interest, on the first day of the seventh month following such separation from service. Except as permitted under Section 409A of the Code, any deferred compensation (within the meaning of Section 409A of the Code) payable to adopt such amendments or for your benefit under any Company Plan may not be reduced by, or offset against, any amount owing by you to the Company. Except as specifically permitted by Section 409A of the Code, the benefits and reimbursements provided to you under this Agreement and any Company Plan during any calendar year shall not affect the benefits and reimbursements to be provided to you under the relevant section of this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take Company Plan in any other actionscalendar year, that and the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall such benefits and reimbursements cannot be deemed “nonqualified deferred compensation” subject to Section 409A to the extent liquidated or exchanged for any other benefit and shall be provided in the exceptions in Treasury Regulation accordance with Treas. Reg. Section 1.409A-1(b)(4), Section 1.409A-1(b)(91.409A-3(i)(1)(iv) or any other applicable exception successor thereto. Further, in the case of reimbursement payments, such payments shall be made to you on or provision before the last day of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a the calendar year following the calendar year in which the payment event (such as termination underlying fee, cost, or expense is incurred. Notwithstanding the preceding, the Company makes no representations concerning the tax consequences of employment) occurs shall commence payment only your participation in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to this Agreement under Section 409A to be made upon a termination of employment under this Agreement may only be made the Code or any other Federal, state or local tax law. Your tax consequences shall depend, in part, upon the Executive’s Separation from Service. (iii) To application of relevant tax law, including Section 409A of the extent that any payments or reimbursements provided Code, to the Executive under relevant facts and circumstances. You should consult a competent and independent tax advisor regarding the tax consequences of this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefitAgreement.

Section 409A of the Code. (ia) To It is intended that the extent applicableprovisions of this Agreement comply with, or be exempt from, the requirements of Section 409A of the Code and the regulations promulgated thereunder (“Section 409A”), and all provisions of this Agreement shall be construed and interpreted in accordance a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Notwithstanding 409A. (b) Neither Executive nor any provision of this Agreement his creditors or beneficiaries shall have the right to subject any deferred compensation (within the contrary, if the Company determines that any compensation or benefits meaning of Section 409A) payable under this Agreement may be subject to Section 409Aor under any other plan, policy, arrangement or agreement of or with the Company or any of its affiliates (this Agreement and such other plans, policies, arrangements and agreements, the “Company shall work in good faith with the Executive Plans”) to adopt such amendments to this Agreement any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated garnishment. Except as a right to a series of separate payments. To the extent permitted under Section 409A, any separate deferred compensation (within the meaning of Section 409A) payable to Executive or for Executive’s benefit under any Company Plan may not be reduced by, or offset against, any amount owing by Executive to the Company or any of its affiliates. (c) If, at the time of Executive’s separation from service (within the meaning of Section 409A), (i) Executive is a “specified employee” (within the meaning of Section 409A and using the identification methodology selected by the Company from time to time, to the extent the methodology so selected is permitted under Section 409A) and (ii) the Company shall make a good faith determination that an amount payable under the Company Plans constitutes deferred compensation (within the meaning of Section 409A and after taking into account all exemptions thereunder) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company shall not pay such amount on the otherwise scheduled payment date, but shall instead accumulate such amount and pay it, without interest, on the first business day after the expiration of such six-month period. To the extent required by Section 409A, any payment or benefit that would be considered deferred compensation subject to, and not exempt from, Section 409A, payable or provided upon a termination of Executive’s employment, shall only be paid or provided to Executive upon his separation from service (within the meaning of Section 409A). (d) For purposes of Section 409A, each payment hereunder will be deemed to be a separate payment as permitted under Treasury Regulation Section 1.409A-2(b)(2)(iii). (e) Except as specifically permitted by Section 409A or as otherwise specifically set forth in this Agreement, the benefits and reimbursements provided to Executive under this Agreement or otherwise and any Company Plan during any calendar year shall not affect the benefits and reimbursements to be deemed “nonqualified deferred compensation” subject provided to Section 409A Executive under the relevant section of this Agreement or any Company Plan in any other calendar year, and the right to the extent such benefits and reimbursements cannot be liquidated or exchanged for any other benefit and shall be provided in the exceptions in Treasury Regulation accordance with Treas. Reg. Section 1.409A-1(b)(4), Section 1.409A-1(b)(91.409A-3(i)(1)(iv) or any other successor thereto. Further, in the case of reimbursement payments, reimbursement payments shall be made to Executive as soon as practicable following the date that the applicable exception or provision expense is incurred, but in no event later than the last day of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a the calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Serviceunderlying expense is incurred. (iiif) To the extent that any payments or reimbursements provided necessary to qualify for the Executive short-term deferral exception under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv457A(d)(3)(B) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable yearCode, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange Section 409A, any Ineligible Compensation that is attributable to services performed by Executive for any other benefit.a “nonqualified

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(91.409A- 1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall required to be interpreted in accordance compliance with Section 409A. Notwithstanding 409A of the Code, and the regulations promulgated thereunder (together, “Section 409A”), notwithstanding any other provision of this Agreement the Plan, (a) any payment or benefit to which a Participant is eligible with respect to the contrary2022 LTIP, if the Company determines that any compensation or benefits payable under this Agreement may be subject to including a Participant who is a “specified employee” as defined in Section 409A, shall be adjusted or delayed and (b) any term of the Company shall work 2022 LTIP may be adjusted in good faith such manner as to comply with Section 409A and maintain the Executive intent of the 2022 LTIP to adopt such amendments the maximum extent possible. More specifically, to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take the extent any other actions, that payment provided to a Participant under the Company determines are necessary or appropriate to avoid the imposition of taxes 2022 LTIP constitutes non exempted deferred compensation under Section 409A409A and the Participant is at the time of the Participant’s Termination of Employment considered to be a “specified employee” pursuant to the Company’s policy for determining such employees, including without limitationthe payment of any such non exempted amount and the provision of such non exempted benefits will be delayed for six months following the Participant’s separation from service. Notwithstanding the foregoing, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) Delta shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right any Participant or any other person if any payment is determined to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed constitute “nonqualified deferred compensation” subject to within the meaning of Section 409A and does not satisfy the additional conditions applicable to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to under Section 409A 409A. You and Delta, each intending to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided bound legally, agree to the Executive under matters set forth above by signing this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would applyAgreement, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 all as of the year following the year in which the expense was incurreddate set forth below. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable yearDELTA AIR LINES, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.INC. By: Name: Xxxxxx Xxxxxxx Title: Vice President—Total Rewards PARTICIPANT [PARTICIPANT] Date:

Section 409A of the Code. This Agreement is intended, to the greatest extent permitted under law, to comply with the short-term deferral exemption provided in Section 409A of the Code, and the regulations and other interpretative guidance issued thereunder (i“Section 409A”) such that no benefits or payments under this Agreement are subject to Section 409A. Notwithstanding anything herein to the contrary, the timing of any payments under this Agreement shall be made consistent with such exemption. Employee’s right to receive a series of installment payments under this Agreement, if any, shall be treated as a right to receive a series of separate payments. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A, including without limitation any such regulations or other guidance that may be issued after the Effective Date. Notwithstanding any provision of this Agreement to the contrary, if in the event that the Company determines that any compensation or benefits amounts payable under this Agreement hereunder may be subject to Section 409A, the Company shall work may, to the extent permitted under Section 409A cooperate in good faith with the Executive to adopt such amendments to this Agreement or adopt other appropriate policies and procedures (procedures, including amendments, amendments and policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A; provided, however, that this Section 11(d) 14 shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from Service. (iii) To the extent that any payments or reimbursements provided payable pursuant to the Executive under this Agreement are deemed to constitute compensation subject to the Executive to which Treasury Regulation provisions of Section 1.409A-3(i)(1)(iv) would apply409A, such amounts reimbursements shall be paid or reimbursed reasonably promptly, but not to Employee no later than December 31 of the year following the year in which the expense was incurred. The , the amount of any such payments eligible for reimbursement expenses reimbursed in one year shall not affect the payments or expenses that are amount eligible for payment or reimbursement in any other taxable subsequent year, and the ExecutiveEmployee’s right to such payments or reimbursement of any such expenses shall under this Agreement will not be subject to liquidation or exchange for any other another benefit.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder (together, “Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company shall US-DOCS\93731500.3 work in good faith with the Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, including without limitation, actions intended to (iA) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (iiB) comply with the requirements of Section 409A; provided, however, that this Section 11(d10(l) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any 409A. (iii) Notwithstanding anything herein to the contrary, to the extent any payments to the Executive pursuant to Sections 4(a)(i)(B), 4(a)(ii) and 4(a)(iv) are treated as “nonqualified deferred compensation” subject to Section 409A that are subject 409A, then (A) no amount shall be payable pursuant to execution of a waiver and release which may be executed and/or revoked in a calendar year following such section unless the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a Executive’s termination of employment under constitutes a “separation from service” with the Company (as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto) (a “Separation from Service”), and (B) if the Executive, at the time of his Separation from Service, is determined by the Company to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code and the Company determines that delayed commencement of any portion of the termination benefits payable to the Executive pursuant to this Agreement may only is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (any such delayed commencement, a “Payment Delay”), then such portion of the Executive’s termination benefits described in Sections 4(a)(i)(B), 4(a)(ii) and 4(a)(iv) shall not be made upon provided to the Executive prior to the earlier of (A) the expiration of the six-month period measured from the date of the Executive’s Separation from Service, (B) the date of the Executive’s death or (C) such earlier date as is permitted under Section 409A. Upon the expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to the Executive within ten (10) days following such expiration, and any remaining payments due under the Agreement shall be paid as otherwise provided herein. The determination of whether the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his Separation from Service shall made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto). (iiiiv) To the extent that any payments or reimbursements provided to the Executive under this Agreement are deemed to constitute compensation to the Executive to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed reasonably promptly, but not later than December 31 of the year following the US-DOCS\93731500.3 year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit. (v) In the event that the amounts payable under Sections 4(a)(i)(B), 4(a)(ii) and 4(a)(iv) are subject to Section 409A and the timing of the delivery of the Executive’s Release could cause such amounts to be paid in one or another taxable year, then notwithstanding the payment timing set forth in such sections, such amounts shall not be payable until the later of (A) the payment date specified in such section or (B) the first business day of the taxable year following the Executive’s Separation from Service.

Section 409A of the Code. (i) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A. 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A409A of the Code and related Department of Treasury guidance, the Company shall work in good faith with the Executive Employee to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A409A of the Code, including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A409A of the Code, and/or (ii) comply with the requirements of Section 409A409A of the Code and related Department of Treasury guidance; provided, however, that this Section 11(d10(d) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so. (ii) Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. To the extent permitted under Section 409A409A of the Code, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 4(d) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A. All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment under this Agreement may only be made upon the Executive’s Separation from ServiceCode. (iii) To the extent that any payments or reimbursements provided to the Executive Employee under this Agreement Agreement, including, without limitation, pursuant to Section 2(b)(vi) hereof, are deemed to constitute compensation to the Executive Employee to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, 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 such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and the ExecutiveEmployee’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.