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

Application of Section 409A of the Internal Revenue Code. (a) This Agreement will be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without you incurring sanctions under section 409A of the Code, then such benefit or payment will be provided in full at the earliest time thereafter when such sanctions will not be imposed. Each payment made under this Agreement will be treated as a separate payment and the right to a series of installment payments under this Agreement will be treated as a right to a series of separate payments. In no event will you, directly or indirectly, designate the calendar year of payment. (b) All reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement will be for expenses incurred during your lifetime (or during a shorter period of time specified in this Agreement), (ii) 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 be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any provision of this Agreement to the contrary, if, at the time of your “separation from service” with the Company, the Company has securities which are publicly traded on an established securities market and you are a “specified employee” (within the meaning of such term under section 409A of the Code) and it is necessary to postpone the commencement of any compensation payments or benefits otherwise payable pursuant to this Agreement as a result of your “separation from service” to prevent any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) that are not otherwise paid within the short-term deferral and separation pay plan exceptions under section 409A of the Code, until the first payroll date that occurs after the date that is six months following your “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed a mounts will be paid in a lump sum to you on the first payroll date that occurs after the date that is six (6) months following your “separation of service” with the Company. If you die during the postponement period prior to the payment of postponed amount, the amounts withheld on account of section 409A of the Code will be paid to the personal representative of your estate within sixty (60) days after the date of your death.

Application of Section 409A of the Internal Revenue Code. (a) This Agreement will be interpreted is intended to avoid any penalty sanctions under comply with section 409A of the CodeInternal Revenue Code and the regulations issued thereunder (“Section 409A”), including the six-month delay for certain key employees if applicable, or an exemption. If any payment or benefit cannot be provided or made at the time specified herein without you incurring sanctions under section 409A of the Code, then such benefit or payment will be provided in full at the earliest time thereafter when such sanctions will not be imposed. Each payment made Severance benefits under this Agreement will are intended to be treated as exempt from Section 409A under the “short-term deferral” exception, to the maximum extent applicable, and then under the “separation pay” exception, to the maximum extent applicable. All payments to be made upon a separate payment and termination of employment under this Agreement may only be made upon a “separation from service” under Section 409A. For purposes of Section 409A, the right to a series of installment payments under this Agreement will shall be treated as a right to a series of separate paymentspayments and each payment shall be treated as a separate payment. In With respect to payments that ​ are subject to Section 409A, in no event will may you, directly or indirectly, designate the calendar year of a payment. (b) All , and if a payment that is subject to execution of this Agreement could be made in more than one taxable year, based on timing of the execution of this Agreement, payment will be made in the later taxable year. Any reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement Section 409A. You will be solely responsible for expenses incurred during your lifetime (any tax imposed under Section 409A and in no event will the Company have any liability with respect to any tax, interest or during other penalty imposed under Section 409A. ​ [Signature page follows] ​ ​ You acknowledge that you have fully read, understand, and voluntarily enter into this agreement, had a shorter period reasonable amount of time specified in this Agreement), (ii) to consider 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 be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any provision terms of this Agreement and you sign it with the intent to be legally bound. ​ Agile Therapeutics, Inc. ​ By: /s/ ▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇ ▇▇▇▇▇▇▇▇ Title: Chairperson and CEO ​ ​ By signing below, you represent the following: ​ I have read this Agreement. I have been advised by the Company to consult with an attorney of my own choosing during the Forty-Five (45)-day consideration period. I sign this Agreement freely and voluntarily, without duress or coercion. ​ ​ _/s/ ▇▇▇▇▇ ▇▇▇▇▇_________________ ▇▇▇▇▇ ▇▇▇▇▇ ​ _August 17, 2023________________ Execution Date ​ ​ ​ ​ ​ By signing below, ▇▇▇▇▇ ▇▇▇▇▇, wishing to be legally bound, acknowledges and agrees to the contrary, if, at following: I have confirmed my understanding and agreement to the time of your commitments set forth in the Transition and Separation Agreement and General Release (the “separation from service” with the Company, the Company has securities Agreement”) to which are publicly traded on an established securities market and you are a “specified employee” (within the meaning of such term under section 409A this Reaffirmation Agreement is attached. This page represents my reaffirmation of the Code) commitments and it is necessary to postpone representations set forth in the commencement Agreement as of any compensation payments or benefits otherwise payable the date hereof, written below, and I hereby agree that the general release of claims pursuant to Section 5 the Agreement will be extended to cover any Claims (as defined in the Agreement) arising from any act, omission or occurrence occurring up to and including the date hereof. Accordingly, you acknowledge that Section 14 of the Agreement is incorporated into this Reaffirmation Agreement as a result if set forth herein and applicable to the additional release of your “separation from service” to prevent any accelerated or additional tax under section 409A Claims set forth in the preceding sentence. I ratify and reaffirm the commitments set forth in the Agreement and the release of Claims described in the Agreement as of the Codedate hereof: ​ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: August 17, then the Company will postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) that are not otherwise paid within the short-term deferral and separation pay plan exceptions under section 409A of the Code, until the first payroll date that occurs after the date that is six months following your “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed a mounts will be paid in a lump sum to you on the first payroll date that occurs after the date that is six (6) months following your “separation of service” with the Company. If you die during the postponement period prior to the payment of postponed amount, the amounts withheld on account of section 409A of the Code will be paid to the personal representative of your estate within sixty (60) days after the date of your death.2023 ​ ​ ​ ​ ​ ​

Application of Section 409A of the Internal Revenue Code. (a) This Agreement will be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without you incurring sanctions under section 409A of the CodeAgreement, then such benefit or payment will be provided in full at the earliest time thereafter when such sanctions will not be imposed. Each payment made under this Agreement will be treated as a separate payment and including the right to a series receive Company Stock upon satisfaction of installment payments under this Agreement will the Vesting Schedule, is intended to be treated as a right to a series of separate payments. In no event will you, directly or indirectly, designate the calendar year of payment. (b) All reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with exempt from the requirements of section 409A of the CodeCode pursuant to the short-term deferral exemption thereunder, including, where applicable, the requirement that (i) any reimbursement will be for expenses incurred during your lifetime (or during a shorter period of time specified in and this Agreement), (ii) 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 be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (iv) including the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. (c) receive Company Stock upon the satisfaction of the Vesting Schedule, shall be interpreted on a basis consistent with such intent. Notwithstanding any provision of in this Agreement to the contrary, if, at if the time of your “separation from service” with the Company, the Company has securities which are publicly traded on an established securities market and you are Grantee is a “specified employee” (within the meaning of such term under as defined in section 409A of the Code) and it is necessary to postpone the commencement of any compensation payments or benefits otherwise payable pursuant to under this Agreement as a result of your “separation from service” to prevent any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement payment until five (5) days after the end of the six-month period following the original payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) that are not otherwise paid within the short-term deferral and separation pay plan exceptions under section 409A of the Code, until the first payroll date that occurs after the date that is six months following your “separation of service” with the Companydate. If any payments are postponed due to such requirements, such postponed a mounts will be paid in a lump sum to you on the first payroll date that occurs after the date that is six (6) months following your “separation of service” with the Company. If you die Grantee dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of section 409A of the Code will shall be paid to the personal representative of your the Grantee’s estate within sixty (60) days after the date of the Grantee’s death. The determination of who is a specified employee, including the number and identity of persons considered specified employees and the identification date, shall be made by the Committee in accordance with the provisions of sections 416(i) and 409A of the Code. In no event shall the Grantee, directly or indirectly, designate the calendar year of payment. This Agreement may be amended without the consent of the Grantee in any respect deemed by the Committee to be necessary in order to preserve compliance with section 409A of the Code or other applicable law. I, , hereby irrevocably elect to have a number of shares of Company Stock that were granted to me pursuant to the Restricted Stock Unit Grant Agreement by and between me and the Company dated , 2013 (the “Agreement”) under the Auxilium Pharmaceuticals, Inc. 2004 Equity Compensation Plan, as amended (the “Plan”) that would have been redeemed by Auxilium Pharmaceuticals, Inc. (the “Company”) on the Redemption Date(s) provided in the Summary of Grant, to instead be redeemed as follows: o I elect to defer shares* of Company Stock that become vested on one or more of the Vesting Dates set forth in the Summary of Grant until the earliest of (i) , 20 (the “Deferred Date”), (ii) the date of my separation from service (within the meaning of such term under section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) or (iii) the date on which a Change of Control occurs; provided that the Change of Control transaction is also a “change in control event” within the meaning of such term under section 409A of the Code. Note: The Deferred Date must be at least 2 calendar years following the year in which the third anniversary of the Date of Grant occurs. o I elect to defer shares* of Company Stock that become vested on one or more of the Vesting Dates set forth in the Summary of Grant until the earlier of (i) the date of my separation from service (within the meaning of such term under section 409A of the Code) or (ii) the date on which a Change of Control occurs; provided that the Change of Control transaction is also a “change in control event” within the meaning of such term under section 409A of the Code. * Note that if you elect to defer less than the full number of shares subject to the Agreement, your deathdeferral election will be applied on a pro rata basis against the number of shares of Company Stock that become vested each of the Vesting Dates set forth in the Summary of Grant. If your employment or service terminates prior to a Vesting Date, your deferral election will not be processed and will be of no further force and effect.

Application of Section 409A of the Internal Revenue Code. (a) This Agreement will shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without you incurring sanctions under section 409A of the Code, then such benefit or payment will shall be provided in full (to extent not paid in part at earlier date) at the earliest time thereafter when such sanctions will not be imposed. Each For purposes of section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon Executive’s “separation from service” (within the meaning of such term under section 409A of the Code), each payment made under this Agreement will shall be treated as a separate payment payment, and the right to a series of installment payments under this Agreement will shall be treated as a right to a series of separate payments. In no event will youshall Executive, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. (b) Notwithstanding anything herein to the contrary, if, at the time of Executive’s termination of employment with the Company, the Company has securities which are publicly traded on an established securities market and Executive is a “specified employee” (as such term is defined in section 409A of the Code) and it is necessary to postpone the commencement of any payments or benefits otherwise payable under this Agreement as a result of such termination of employment to prevent any accelerated or additional tax under section 409A of the Code, then the Company shall postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Executive) that are not otherwise paid within the ‘short-term deferral exception’ under Treas. Reg. section 1.409A-1(b)(4), and the ‘separation pay exception’ under Treas. Reg. section 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Executive’s “separation from service” (within the meaning of such term under section 409A of the Code) with the Company. If any payments are postponed due to such requirements, such postponed amounts shall be paid in a lump sum to Executive on the first payroll date that occurs after the date that is six months following Executive’s separation from service with the Company. If Executive dies during the postponement period prior to the payment of postponed amount, the amounts postponed on account of section 409A of the Code shall be paid to the personal representative of Executive’s estate within 60 days after the date of Executive’s death. (c) All reimbursements and in-kind benefits provided under this Agreement will shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement will shall be for expenses incurred during your Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) 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 be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will shall be made on or before the last day of the calendar year following the year in which the expense is incurred, incurred and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any provision of this Agreement to the contrary, if, at the time of your “separation from service” with the Company, the Company has securities which are publicly traded on an established securities market and you are a “specified employee” (within the meaning of such term under section 409A of the Code) and it is necessary to postpone the commencement of any compensation payments or benefits otherwise payable pursuant to this Agreement as a result of your “separation from service” to prevent any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) that are not otherwise paid within the short-term deferral and separation pay plan exceptions under section 409A of the Code, until the first payroll date that occurs after the date that is six months following your “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed a mounts will be paid in a lump sum to you on the first payroll date that occurs after the date that is six (6) months following your “separation of service” with the Company. If you die during the postponement period prior to the payment of postponed amount, the amounts withheld on account of section 409A of the Code will be paid to the personal representative of your estate within sixty (60) days after the date of your death.

Application of Section 409A of the Internal Revenue Code. (a) This Agreement will is intended to comply with the applicable provisions of code section 409A and shall be interpreted to avoid any penalty sanctions under code section 409A of the Code. 409A. If any payment or benefit cannot be provided or made at the time specified herein without you incurring sanctions under code section 409A of the Code409A, then such benefit or payment will shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. Each For purposes of code section 409A, all payments to be made upon the termination of employment under this Agreement may only be made upon a “separation from service” within the meaning of such term under code section 409A, each payment made under this Agreement will shall be treated as a separate payment and the right to a series of installment payments under this Agreement will is to be treated as a right to a series of separate payments. In no event will youshall the Executive, directly or indirectly, designate the calendar year of payment. (b) Notwithstanding any provision of this Agreement (or any provision of the documents incorporated herein by reference) to the contrary, if, at the time of the Executive’s termination of employment with BMP, BMP has stock which is publicly traded on an established securities market and the Executive is a “specified employee” (as defined in code section 409A) and it is necessary to postpone the commencement of any payments or benefits otherwise payable pursuant to Agreement as a result of such termination of employment to prevent any accelerated or additional tax under code section 409A, then BMP will postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise paid within the short-term deferral exception under code section 409A and are in excess of the lesser of two (2) times (i) the Executive’s then-annual compensation or (ii) the limit on compensation then set forth in section 401(a)(17) of the Code, until the first payroll date that occurs after the date that is six months following the Executive’s “separation of service” with BMP (within the meaning of such term under code section 409A). If any payments or benefits are postponed due to such requirements, such amounts will be paid in a lump sum to the Executive on the first payroll date that occurs after the date that is six months following the Executive’s “separation of service” with BMP; provided, however, that, if any payment due to the Executive is delayed as a result of code section 409A, the Executive shall be entitled to be paid interest at a per annum rate equal to the highest rate of interest applicable to six (6)-month money market accounts offered by the following institutions: Citibank N.A., ▇▇▇▇▇ Fargo Bank, N.A. or Bank of America, as of the Executive’s date of termination. If the Executive dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of code section 409A shall be paid to the personal representative of the Executive’ s estate within sixty (60) days after the date of the Executive’s death. (c) All reimbursements reimbursable expenses, any other reimbursements, and inin kind benefits, including any third-kind benefits party payments, provided under this Agreement will shall be made or provided in accordance with the requirements of code section 409A of the Code409A, including, where applicable, the requirement that (ia) any reimbursement will be or in kind benefit is for expenses incurred during your the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (iib) 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 be provided, in any other calendar year, (iiic) the reimbursement or payment of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (ivd) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any provision of this Agreement to the contrary, if, at the time of your “separation from service” with the Company, the Company has securities which are publicly traded on an established securities market and you are a “specified employee” (within the meaning of such term under section 409A of the Code) and it is necessary to postpone the commencement of any compensation payments or benefits otherwise payable pursuant to this Agreement as a result of your “separation from service” to prevent any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) that are not otherwise paid within the short-term deferral and separation pay plan exceptions under section 409A of the Code, until the first payroll date that occurs after the date that is six months following your “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed a mounts will be paid in a lump sum to you on the first payroll date that occurs after the date that is six (6) months following your “separation of service” with the Company. If you die during the postponement period prior to the payment of postponed amount, the amounts withheld on account of section 409A of the Code will be paid to the personal representative of your estate within sixty (60) days after the date of your death.

Application of Section 409A of the Internal Revenue Code. (a) This Agreement will be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without you incurring sanctions under section 409A of the Code, then such benefit or payment will be provided in full at the earliest time thereafter when such sanctions will not be imposed. Each For purposes of section 409A of the Code, all payments to be made upon your termination of employment under this Agreement may only be made upon your “separation from service” within the meaning of such term under section 409A of the Code, each payment made under this Agreement will be treated as a separate payment and the right to a series of installment payments under this Agreement will be treated as a right to a series of separate payments. In no event will you, directly or indirectly, designate the calendar year of payment. (b) All reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement will be for expenses incurred during your lifetime (or during a shorter period of time specified in this Agreement), (ii) 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 be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. (c) Notwithstanding any provision of this Agreement to the contrary, if, at the time of your “separation from service” with the Company, the Company has securities which are publicly traded on an established securities market and you are a “specified employee” (within the meaning of such term under section 409A of the Code) and it is necessary to postpone the commencement of any compensation payments or benefits otherwise payable pursuant to this Agreement as a result of your “separation from service” to prevent any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) that are not otherwise paid within the short-term deferral and separation pay plan exceptions under section 409A of the Code, until the first payroll date that occurs after the date that is six months following your “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed a mounts will be paid in a lump sum to you on the first payroll date that occurs after the date that is six (6) months following your “separation of service” with the Company. If you die during the postponement period prior to the payment of postponed amount, the amounts withheld on account of section 409A of the Code will be paid to the personal representative of your estate within sixty (60) days after the date of your death.and