Common use of Compliance with Code Section 409A Clause in Contracts

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, Executive’s termination of employment with the Company Executive is a “specified employee” as defined in Section 409A of the Code, Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) 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 Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In 409A of the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax Code, or additional tax under Code Section 409A, then otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent required possible, in a manner, determined by Code Section 409Athe Board, a termination of employment shall that does not be deemed to have occurred for cause such an accelerated or additional tax. 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 Section 409A of the Code andCode, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each each payment made under this Agreement shall be treated designated as a “separate payment payment” within the meaning of the Section 409A of the Code, and references herein to Executive’s “termination of employment” shall refer to Executive’s separation from service with the right Company within the meaning of Section 409A. To the extent any reimbursements or in-kind benefits due to a series of installment payments Executive under this Agreement is constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to be treated as Executive in a right manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 11(h); provided that neither the Company nor any of its employees or representatives shall have any liability to a series of separate payments.Executive with respect to thereto or any tax imposed under Section 409A.

Compliance with Code Section 409A. The intent of the parties is that All payments and benefits under this Agreement are intended to comply with or are be exempt from the requirements of Section 409A of the Code and regulations promulgated thereunder (“Section 409A”). To the extent permitted under applicable regulations and/or other guidance of general applicability issued pursuant to Section 409A, the Company reserves the right to modify this Agreement to conform with any or all relevant provisions regarding compensation and/or benefits so that such compensation and benefits are exempt from the provisions of 409A and/or otherwise comply with such provisions so as to avoid the tax consequences set forth in Section 409A and to assure that no payment or benefit shall be interpreted and construed in a manner that establishes subject to an exemption from (or compliance with) the requirements of Code “additional tax” under Section 409A. Any terms of To the extent that any provision in this Agreement that are undefined is ambiguous as to its compliance with Section 409A, or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent any provision in this Agreement must be modified to comply with Section 409A, such provision shall be read in such a manner so that no payment due to the Executive shall be subject to an “additional tax” within the meaning of Section 409A(a)(1)(B) of the Code. If necessary to comply with the restriction in Section 409A(a)(2)(B) of the Code Section 409A. Notwithstanding anything herein concerning payments to the contrary, (i) if, on the date of termination, the Executive is a “specified employeeemployees,” as defined in Section 409A any payment on account of the Code, and the deferral of the commencement of any payments or benefits Executive’s separation from service that would otherwise payable be due hereunder as a result of within six (6) months after such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) separation shall be delayed until the date that is the first business day of the seventh month following the date of the Executive’s termination and the first such payment shall include the cumulative amount of any payments (without interest) that would have been paid prior to such date if not for such restriction. Each payment in a series of payments hereunder shall be deemed to be a separate payment for purposes of Section 409A. In no event may the Executive, directly or indirectly, designate the calendar year of payment. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the earliest date as amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 permitted under Code Section 409A)incurred, and (iiiv) if any other payments of money the right to reimbursement is not subject to liquidation or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonexchange for another benefit. Notwithstanding anything contained herein to the contrary hereincontrary, to the extent required by Code Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with the Company for purposes of any provision of this Agreement providing for unless the payment of amounts or benefits upon or following Executive would be considered to have incurred 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” from the Company within the meaning of Treasury Regulation §1.409A-1(h)(1)(ii). In no event whatsoever shall the Company be liable for any additional tax, interest or like terms shall mean separation from service. Each payment made under this Agreement shall penalty that may be treated as a separate payment and imposed on the right Executive by Section 409A or damages for failing to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.comply with Section 409A.

Compliance with Code Section 409A. The intent With respect to reimbursements or in-kind benefits provided under this Agreement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement, (b) any reimbursement or provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement) shall be made not later than December 31st of the parties year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that payments and benefits any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with or are exempt from the provisions of Section 409A of the Code and the Treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be imposed under Section 409A of the Code. In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Section 409A of the Code, the parties agree to amend this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of order to bring this Agreement that are undefined or ambiguous shall be interpreted into compliance with Section 409A of the Code; and thereafter interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the deferral of the commencement of Executive shall be responsible for any payments taxes, penalties and interest imposed on him under or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 in connection with the Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of To the parties is extent that payments and benefits any payment under this Agreement comply with or are exempt from constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Internal Revenue Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from of 1986, as amended (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary“Code”), (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 of the Code and, for purposes of any such provision of this Agreement, references to a “terminationtermination ,” “termination of employment” or like terms shall mean “separation from service. Each payment made under ,” (ii) the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to receive a series of separate and distinct payments, and (iii) if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A 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 (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of Executive, and (B) the date of Executive’s death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 7(j) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.

Compliance with Code Section 409A. The intent To the extent applicable, it is intended that the payment of the parties is that payments and benefits under described in this Agreement comply with Code section 409A and all guidance or are exempt regulations thereunder (“Section 409A ”), or qualify for an exemption from Section 409A of (e.g., the Code short-term deferral exception and this the “two times” pay exemption applicable to severance payments). This Agreement shall will, to the extent subject to Section 409A, at all times be interpreted and construed in a manner that establishes an exemption from (or to comply with Section 409A and should any provision be found not in compliance with) with Section 409A, Executive hereby agrees to any changes to the requirements of Code Section 409A. Any terms of this Agreement deemed necessary and required by legal counsel for Company to achieve compliance with Section 409A, including any applicable exemptions. By signing a copy of this Agreement, Executive irrevocably waives any objections he may have to any changes that are undefined or ambiguous shall may be interpreted required by Section 409A. In no event will any payment that becomes payable pursuant to this Agreement that is considered “deferred compensation” within the meaning of Section 409A, if any, and does not satisfy any of the applicable exemptions under Section 409A, be accelerated in a manner that complies with Code violation of Section 409A to 409A. To the extent necessary that any amount payable hereunder upon Executive’s termination of employment is subject to comply with Code Section 409A. Notwithstanding anything herein to the contrary409A, (i) ifpayment shall not be made until Executive incurs a “separation from service,” as defined in Section 409A, on the date of termination, the from Company. If Executive is a “specified employee” as defined in Section 409A of the Code409A, and the deferral of the commencement of any payments or benefits otherwise payment that becomes payable hereunder as a result of such upon his termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination that is also a considered “separation from servicedeferred compensation” within the meaning of Section 409A and does not satisfy any of the Code andapplicable exemptions under Section 409A may not be made before the date that is six months after Executive’s separation from service (or death, for purposes of any such provision of this Agreementif earlier). To the extent Executive becomes subject to the six-month delay rule, references all payments that would have been made to a “termination,” “termination of employment” or like terms shall mean Executive during the six months following his separation from service that are not otherwise exempt from Section 409A, if any, will be accumulated and paid to Executive during the seventh month following his separation from service, and any remaining payments due will be made in their ordinary course as described in this Agreement. Each payment made under Company will notify Executive should he become subject to the six-month delay rule. For purposes of Section 409A, any right to receive any installment payments pursuant to this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to receive a series of separate and distinct payments.

Compliance with Code Section 409A. The intent This Agreement is intended to comply with the requirements of Section 409A of the parties is Code and, to the extent that payments and benefits under adverse tax consequences thereunder may be avoided, this Agreement comply with or (i) shall automatically be amended to the extent necessary to incorporate any provisions required to ensure such compliance (which the Parties hereby agree are exempt from hereby adopted, approved, consented to, ratified and incorporated herein by reference) and (ii) shall be construed, interpreted and operated in a manner that will ensure such compliance. Without limiting the scope of the preceding provisions of this Section 20, to the extent that at any time prescribed under Section 409A of the Code and this Agreement shall be interpreted and construed regulations or other regulatory guidance issued thereunder, Executive is a key employee, as defined in a manner that establishes an exemption from (or compliance withSection 416(i) of the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A without regard to paragraph 5 thereof, except to the extent necessary permitted under Section 409A of the Code and regulations or other regulatory guidance issued thereunder, no distribution or payment that is subject to comply with Section 409A of the Code Section 409A. Notwithstanding anything herein to the contraryshall be made under this Agreement on account of Executive’s separation from service, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the CodeCode and the regulations or other regulatory guidance issued thereunder, with the Company (at any time when Executive is deemed under Section 409A of the Code and regulations or other regulatory guidance issued thereunder to be a specified employee, as defined in Section 409A of the Code and regulations or other regulatory guidance issued thereunder, and the deferral any stock of the commencement of any payments Company is publicly traded on an established securities market or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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 Executiveotherwise) until the date that is the first business day of the seventh month following that occurs six (6) months after the date of termination Executive’s separation from service (or, if earlier, the date of death of Executive or the earliest any other date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 andand regulations or other regulatory guidance issued thereunder). In furtherance of the immediately preceding sentence, for purposes of any such provision distribution or payment otherwise payable in cash to Executive pursuant to the terms of this AgreementAgreement within the period described in the immediately preceding sentence following Executive’s separation from service with the Company will accrue and will be payable in a lump sum payment, references to a “termination,” “termination with interest at the prime rate per annum for commercial lending (as published in the Wall Street Journal on the date of employment” or like terms shall mean Executive’s separation from service. Each ) from the date the payment would have been made under but for application of this Agreement shall be treated as a separate Section to the date of payment, on the payment and date set forth in the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsimmediately preceding sentence.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, if on the date of termination, the Termination Date Executive is a “specified employee” as defined in Section 409A of the Code, Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company or Executive’s earlier death (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) 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 Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In 409A of the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax Code, or additional tax under Code Section 409A, then otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent required possible, in a manner, determined by Code Section 409Athe Board, a termination of employment shall that does not be deemed to have occurred for cause such an accelerated or additional tax. 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 Section 409A of the Code andCode, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each each payment made under this Agreement shall be treated designated as a “separate payment payment” within the meaning of the Section 409A of the Code, and references herein to Executive’s “termination of employment” shall refer to Executive’s separation from service with the right Company within the meaning of Section 409A. To the extent any reimbursements or in-kind benefits due to a series of installment payments Executive under this Agreement is constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to be treated as Executive in a right manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 8(h); provided that neither the Company nor any of its employees or representatives shall have any liability to a series of separate payments.Executive with respect to thereto or any tax imposed under Section 409A.

Compliance with Code Section 409A. The intent To the extent applicable, it is intended that the payment of the parties is that payments and benefits under described in this Agreement comply with Code Section 409A and all guidance or are exempt regulations thereunder ("Section 409A"), including compliance with all applicable exemptions from Section 409A of (e.g., the Code short-term deferral exception and this the "two times" pay exemption applicable to severance payments). This Agreement shall will at all times be interpreted and construed in a manner that establishes an exemption from (or to comply with Section 409A and should any provision be found not in compliance with) with Section 409A, Executive hereby agrees to any changes to the requirements of Code Section 409A. Any terms of this Agreement deemed necessary and required by legal counsel for Company to achieve compliance with Section 409A, including any applicable exemptions. By signing a copy of this Agreement, Executive irrevocably waives any objections he may have to any changes that are undefined or ambiguous shall may be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code required by Section 409A. Notwithstanding anything herein In no event will any payment that becomes payable pursuant to this Agreement that is considered "deferred compensation" within the contrarymeaning of Section 409A, (i) ifif any, on and does not satisfy any of the date applicable exemptions under Section 409A, be accelerated in violation of termination, the Section 409A. If Executive is a “"specified employee” " as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the any payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred becomes payable pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination that is also a “separation from service” considered "deferred compensation" within the meaning of Section 409A and does not satisfy any of the Code andapplicable exemptions under Section 409A may not be made before the date that is six months after Executive’s separation from service (or death, for purposes of any such provision of this Agreementif earlier). To the extent Executive becomes subject to the six-month delay rule, references all payments that would have been made to a “termination,” “termination of employment” or like terms shall mean Executive during the six months following his separation from service that are not otherwise exempt from Section 409A, if any, will be accumulated and paid to Executive during the seventh month following his separation from service, and any remaining payments due will be made in their ordinary course as described in this Agreement. Each payment made under this Agreement shall be treated as a separate payment and Company will notify Executive should he become subject to the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentssix month delay rule.

Compliance with Code Section 409A. The intent of the parties is that payments and With respect to reimbursements or in-kind benefits provided under this Agreement or under any other Company Arrangement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement or under any other Company Arrangement, (b) any reimbursement of provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement or of any other Company Arrangement) shall be made not later than December 31st of the year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement or of any other Company Arrangement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that any amounts payable under this Agreement, any Employee Plan or any other Company Arrangement, and any exercise of the Company’s and the Executive’s authority or discretion hereunder, shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall the treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of imposed under Code Section 409A. Any terms In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Code Section 409A, the Parties agree to amend this Agreement that are undefined or ambiguous shall be interpreted in order to bring this Agreement into compliance with Code Section 409A; and thereafter to interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the deferral U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding anything in this Agreement or elsewhere to the contrary, and unless the Executive otherwise agrees in a signed writing executed in connection with the termination of his employment under this Agreement, the Executive shall have no duties or responsibilities after the Termination Date that are inconsistent with his having had a Separation from Service on the Termination Date. If the Executive agrees, in a signed writing that is executed in connection with the termination of his employment under this Agreement, to undertake duties and responsibilities that will result in his not incurring a Separation from Service on the Termination Date, all references to the Termination Date herein for the purposes of determining the commencement of any severance payments or and benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be constitute deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” compensation within the meaning of Section 409A shall mean the date Executive incurs a Separation from Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with this Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on him under or as a result of Section 409A of the Code and, for purposes of any such provision in connection with payments and benefits made in accordance with the terms of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of the parties is that payments and If any amounts or benefits payable under this Agreement comply with or are exempt from on account of Employee’s termination of employment constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), no payments or benefits shall be paid or provided until Employee incurs a separation from service within the meaning of Treas. Reg. § 1.409A-1(h) from the Company and any entity that would be considered a single employer with the Company under Code Sections 414(b) or 414(c) (“Separation from Service”). If, at the time of Employee’s Separation from Service, the Employee is a “specified employee” (within the meaning of Code Section 409A and Treas. Reg. §1.409A-3(i)(2)), the Company will not pay or provide any “Specified Benefits” (as defined herein) during the six-month period (the “409A Suspension Period”) beginning immediately after the Employee’s Separation from Service. For purposes of this Agreement, “Specified Benefits” are any amounts or benefits that would be subject to Code Section 409A penalties if the Company were to pay them, pursuant to this Agreement, on account of the Employee’s Separation from Service. This Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Company shall have complete discretion to interpret and construe this Agreement shall be interpreted and construed any associated documents in a any manner that establishes an exemption from (or compliance withotherwise conforms them to) the requirements of Code Section 409A. Any terms If, for any reason including imprecision in drafting, the Agreement does not accurately reflect its intended establishment of this Agreement that are undefined an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Company in a manner that complies with Code Section 409A fashion consistent herewith, as determined in the sole and absolute discretion of the Company. The Company reserves the right to unilaterally amend this Agreement without the extent necessary consent of the Employee in order to comply accurately reflect its correct interpretation and operation, as well as to maintain an exemption from or compliance with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the CodeNevertheless, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if notwithstanding any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 neither the Company nor any of its employees, directors, or their agents shall have any obligation to a “termination,” “termination of employment” mitigate, nor to hold the Employee harmless from, any or like terms shall mean separation from service. Each payment made all taxes (including any imposed under Code Section 409A) arising under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsAgreement.

Compliance with Code Section 409A. The intent To the extent applicable, it is intended that the payment of the parties is that payments and benefits under described in this Agreement comply with Code Section 409A and all guidance or are exempt regulations thereunder (“Section 409A”), including compliance with all applicable exemptions from Section 409A of (e.g., the Code short-term deferral exception and this the “two times” pay exemption applicable to severance payments). This Agreement shall will at all times be interpreted and construed in a manner that establishes an exemption from (or to comply with Section 409A and should any provision be found not in compliance with) with Section 409A, Executive hereby agrees to any changes to the requirements of Code Section 409A. Any terms of this Agreement deemed necessary and required by legal counsel for Company to achieve compliance with Section 409A, including any applicable exemptions. By signing a copy of this Agreement, Executive irrevocably waives any objections he may have to any changes that are undefined or ambiguous shall may be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code required by Section 409A. Notwithstanding anything herein In no event will any payment that becomes payable pursuant to this Agreement that is considered “deferred compensation” within the contrarymeaning of Section 409A, (i) ifif any, on and does not satisfy any of the date applicable exemptions under Section 409A, be accelerated in violation of termination, the Section 409A. If Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the any payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred becomes payable pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination that is also a considered “separation from servicedeferred compensation” within the meaning of Section 409A and does not satisfy any of the Code andapplicable exemptions under Section 409A may not be made before the date that is six months after Executive’s separation from service (or death, for purposes of any such provision of this Agreementif earlier). To the extent Executive becomes subject to the six-month delay rule, references all payments that would have been made to a “termination,” “termination of employment” or like terms shall mean Executive during the six months following his separation from service that are not otherwise exempt from Section 409A, if any, will be accumulated and paid to Executive during the seventh month following his separation from service, and any remaining payments due will be made in their ordinary course as described in this Agreement. Each payment made under this Agreement shall be treated as a separate payment and Company will notify Executive should he become subject to the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentssix month delay rule.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall intended to be written, administered, interpreted and construed in a manner such that establishes an exemption from no payment or benefits provided under the Agreement become subject to (or compliance witha) the requirements 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. Any 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. The severance payments payable to the Executive pursuant to this Agreement that are undefined or ambiguous shall be interpreted made in a manner that complies with Code reliance upon Treasury Regulation Section 409A 1.409A-1(b)(4) (relating to short-term deferrals) and, to the extent necessary to comply with Code applicable, the exemption in Treasury Regulation Section 409A. Notwithstanding anything herein 1.409A-1(b)(9)(iii). However, to the contraryextent any such payments are treated as “non-qualified deferred compensation” subject to Section 409A of the Code, and if the Executive is deemed 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, then to the extent delayed commencement of any portion of the benefits to which the Executive is entitled under this Agreement is required in order to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of the Executive’s termination benefits shall not be provided to the Executive prior to the earlier of (i) if, on the expiration of the six-month period measured from the date of terminationthe Executive’s separation from service or (ii) the date of the Executive’s death. Upon the earlier of such dates, all payments deferred pursuant to this Section 22 shall be paid in a lump sum to the Executive. The determination of whether the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision Section 409A(a)(2)(B)(i) of this Agreement providing for the payment Code as of amounts or benefits upon or following a termination the time of employment unless such termination is also a “separation his Separation from service” within Service shall be made by the meaning Company in accordance with the terms of Section 409A of the Code andand applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto). For purposes of Section 409A of the Code (including, without limitation, for purposes of any such provision of this AgreementTreasury Regulation Section 1.409A-2(b)(2)(iii)), references each payment that the Executive may be eligible to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made receive under this Agreement shall be treated as a separate and distinct payment and the right to a series of installment payments under this Agreement is to shall not collectively be treated as a right single payment. In-kind benefits and reimbursements provided under this Agreement during any tax year of the Executive shall not affect in-kind benefits or reimbursements to a series be provided in any other tax year of separate paymentsthe Executive and are not subject to liquidation or exchange for another benefit. Reimbursement requests must be timely submitted by the Executive and, if timely submitted, reimbursement payments shall be made to the Executive as soon as administratively practicable following such submission in accordance with the Company’s policies regarding reimbursements, but in no event later than the last day of Executive’s taxable year following the taxable year in which the expense was incurred. In no event shall the Executive be entitled to any reimbursement payments after the last day of Executive’s taxable year following the taxable year in which the expense was incurred. This Section 22 shall only apply to in-kind benefits and reimbursements that would result in taxable compensation income to the Executive.

Compliance with Code Section 409A. The intent of To the extent applicable, the parties is hereto intend that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code, and all rules, regulations and other similar guidance issued thereunder (“Code and Section 409A”). The parties agree that this Agreement shall at all times be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein 409A (including compliance with any applicable exemptions from Code Section 409A) and that should any provision be found not in compliance with Code Section 409A, the parties are contractually obligated to execute any and all amendments to this Agreement deemed necessary and required by the contrary, (i) if, on the date Company’s legal counsel to achieve compliance with Code Section 409A or any applicable exemption. By execution and delivery of terminationthis Agreement, the Executive irrevocably waives any objections he may have to the amendments required by Code Section 409A. The parties also agree that in no event shall any payment required to be made pursuant to ARTICLE 10 of this Agreement that is considered deferred compensation within the meaning of Code Section 409A be made to the Executive unless he has incurred a “specified employee” separation from service (as defined in Code Section 409A). In the event amendments are required to make this Agreement compliant with Code Section 409A, the Company shall use its best efforts to provide the Executive with substantially the same benefits and payments he would have been entitled to pursuant to this Agreement had Code Section 409A not applied, but in a manner that is compliant with Code Section 409A or any of its exemptions. The manner in which the immediately preceding sentence shall be implemented shall be the subject of good faith negotiations of the Code, parties. The parties also agree that in no event shall any payment required to be made pursuant to this Agreement that is considered deferred compensation within the meaning of Code Section 409A (and is not otherwise exempt from the deferral provisions thereof) be accelerated in violation of Code Section 409A. The parties further agree that any payment that is considered deferred compensation within the commencement meaning of any payments or benefits Code Section 409A (and is not otherwise payable hereunder exempt from the provisions thereof) and is made as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax a separation from service cannot commence under Code Section 409A, then 409A until the Company will defer the commencement lapse of six (6) months after a separation from service (or death 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A, if earlier), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement intended to comply with or are exempt from the requirements of Section 409A of the Code (including the exceptions thereto), to the extent applicable, and this the Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) accordance with such requirements. If any provision contained in the Agreement conflicts with the requirements of Section 409A of the Code Section 409A. Any terms of this (or the exemptions intended to apply under the Agreement), the Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A deemed to the extent necessary be reformed to comply with the requirements of Section 409A of the Code Section 409A. (or the applicable exemptions thereto). Notwithstanding anything herein to the contrarycontrary herein, (i) if, on for purposes of determining the date of terminationExecutive’s entitlement to the Severance Benefits, the Executive’s employment shall not be deemed to have terminated unless and until the Executive is incurs a “specified employeeseparation from service” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, if a termination of employment shall not be deemed to have occurred for purposes of any provision of payment or benefit under this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also due to a “separation from service” within for purposes of the meaning rules under Treas. Reg. § 1.409A-3(i)(2) (payments to specified employees upon a separation from service) and the Executive is determined to be a “specified employee” (as determined under Treas. Reg. § 1.409A-1(i)), such payment shall, to the extent necessary to comply with the requirements of Section 409A of the Code, be made on the later of (x) the date specified by the foregoing provisions of this Agreement or (y) the date that is six (6) months after the date of the Executive’s separation from service (or, if earlier, the date of the Executive’s death). Any installment payments that are delayed pursuant to this Section 11 shall be accumulated and paid in a lump-sum on the first day of the seventh month following the Date of Termination (or, if earlier, upon the Executive’s death) and the remaining installment payments shall begin on such date in accordance with the schedule provided in this Agreement. The Severance Benefits are intended not to constitute deferred compensation subject to Section 409A of the Code andto the extent such Severance Benefits are covered by (i) the “short-term deferral exception” set forth in Treas. Reg. § 1.409A-1(b)(4), (ii) the “two times severance exception” set forth in Treas. Reg. § 1.409A-1(b)(9)(iii), or (iii) the “limited payments exception” set forth in Treas. Reg. § 1.409A-1(b)(9)(v)(D). The short-term deferral exception, the two times severance exception and the limited payments exception shall be applied to the Severance Benefits in order of payment in such manner as results in the maximum exclusion of such Severance Payments from treatment as deferred compensation under Section 409A of the Code. Each installment of the Severance Benefits shall be deemed to be a separate payment for purposes of Section 409A of the Code. In no event whatsoever shall the Company or any such provision of this Agreementits Affiliates be liable for any additional tax, references interest or penalties that may be imposed on the Executive under Section 409A of the Code or any damages for failing to a “termination,” “termination comply with Section 409A of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsCode.

Compliance with Code Section 409A. The intent A. It is the intention of Xxxxxx and the parties is Executive that payments the payments, benefits and benefits under rights to which the Executive could be entitled pursuant to this Agreement comply with or are exempt from Code Section 409A of the Internal Revenue Code of 1986, as amended ("Code"), the Treasury regulations and other guidance promulgated or issued thereunder ("Section 409A"), to the extent that the requirements of Section 409A are applicable thereto, and after application of all available exemptions, including but not limited to, the "short-term deferral rule" and "involuntary separation pay plan exception" and the provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms intention. If any provision of this Agreement that are undefined (or ambiguous shall be interpreted in a manner that complies with of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A 409A, Xxxxxx shall, upon the specific request of the Executive, use its reasonable business efforts to the extent necessary in good faith reform such provision to comply with Code Section 409A. Notwithstanding anything herein 409A; provided, that to the contrary, (i) if, on the date of terminationmaximum extent practicable, the Executive is a “specified employee” as defined in Section 409A of the Code, original intent and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due economic benefit to the Executive hereunder and Xxxxxx of the applicable provision shall be maintained, but Xxxxxx shall have no obligation to make any changes that could cause create any additional economic cost or loss of benefit to Xxxxxx. Xxxxxx shall not have any liability to the Executive with respect to tax obligations that result from the application of an accelerated or additional tax under Code Section 409A, such 409A and makes no representation with respect to the tax treatment of the payments or other and/or benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments provided under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonAgreement. Notwithstanding anything to the contrary herein, to the extent Any provision required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of compliance with 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 that is omitted from service. Each payment made under this Agreement shall be treated as incorporated herein by reference and shall apply retroactively, if necessary, and be deemed a separate payment and the right to a series part of installment payments under this Agreement is to be treated the same extent as a right to a series of separate paymentsthough expressly set forth herein.

Compliance with Code Section 409A. The intent This Agreement is intended to satisfy the requirements of the parties is that payments and benefits under this Agreement comply with or are exempt from Code Section 409A of and the Code Treasury Regulations issued thereunder (together, “Section 409A”) with respect to amounts subject thereto, and this Agreement shall be interpreted and construed consistent with such intent (including that any ambiguities or ambiguous terms in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall will be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code or otherwise be exempt from Section 409A) so that none of the payments described in this Agreement will be subject to the additional tax imposed under Section 409A. Each installment payment of compensation pursuant to this Agreement shall be treated as a separate payment of compensation for purposes of applying Section 409A. If any payment subject to Section 409A is contingent on the delivery of a release by you and could occur in either of two years, the payment will occur in the later year. Notwithstanding anything herein in this Agreement to the contrary, (i) if, on in the date of termination, the Executive is event that you are deemed to be a “specified employee” as defined in within the meaning of Section 409A(a)(2)(B)(i), no payments subject to Section 409A that are made by reason of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a your “separation from service” within the meaning of Section 409A shall be made to you (or your estate) prior to the date that is six (6) months after the date of the Code and, for purposes of any such provision of this Agreement, references to a your “termination,” “termination of employment” or like terms shall mean separation from service” or, if earlier, your date of death. Each Immediately following any applicable six (6) month delay, all such delayed payments will be paid to you (or your estate) in a single lump sum. That said, Triumph does not and cannot guarantee any particular tax treatment for amounts payable hereunder. Except for Triumph’s responsibility to withhold applicable income and employment taxes from amounts payable to you hereunder, Triumph shall not be responsible for the payment made of any applicable taxes incurred by you on amounts paid or provided to you under this Agreement and in no event shall be treated as a separate payment and the right to a series of installment payments under Triumph have any responsibility or liability if this Agreement is does not meet any applicable requirements of Code Section 409A. Under no circumstances may the time or schedule of any payment made or benefit described in this Agreement be accelerated or subject to be treated further deferral except as a right to a series of separate payments.otherwise permitted under Section 409A.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments intended, and benefits under this Agreement shall be construed and interpreted, to comply with or are exempt from Section 409A of the Internal Revenue Code and this Agreement of 1986, as amended (the “Code”) and, if necessary, any provision shall be interpreted held null and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A void to the extent necessary such provision (or part thereof) fails to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date For purposes of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the each payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made compensation under this Agreement shall be treated as a separate payment of compensation. Any amounts payable solely on account of an involuntary termination shall be excludible from the requirements of Code Section 409A, either as separation pay or as short-term deferrals to the maximum possible extent. Any reference to the Executive’s “termination” or “termination of employment” shall mean the Executive’s “separation from service” as defined in Code Section 409A from the Company and all entities with whom the right to a series of installment payments under this Agreement is to Company would be treated as a right single employer for purposes of Code Section 409A. Notwithstanding anything to the contrary in this Agreement, if the Company determines (i) that on the date the Executive’s employment with the Company terminates or at such other time that the Company determines to be relevant, the Executive is a series “specified Executive” (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of separate paymentsthe Company and (ii) that any payments to be provided to the Executive pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date that is six (6) months after the date of the Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) with the Company, or, if earlier, the date of the Executive’s death. Any payments delayed pursuant to this Section shall be made in a lump sum on the first day of the seventh (7th) month following the Executive’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)), or, if earlier, the date of the Executive’s death. Nothing herein shall be construed as a guarantee of any particular tax treatment to Executive and the Company shall have no liability to the Executive with respect to any penalties that might be imposed on the Executive by Code Section 409A for any failure of this Agreement or otherwise.

Compliance with Code Section 409A. The intent Any payment under this Section 7 is subject to the provisions of this Section 7(h) (except for a payment pursuant to Disability or death under Section 7(d) or (e)). If Executive is a "Specified Employee" of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements Company for purposes of Code Section 409A. Any terms 409A at the time of this Agreement that are undefined or ambiguous shall be interpreted a payment event in a manner that complies with Section 7(b) and if no exception from Code Section 409A applies in whole or in part, the severance or other payments will be made to Executive by the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, Company on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination the Executive's Separation from Service (or the earliest date "409A Payment Date"). Should this Section 7(h) result in a delay of payments to Executive, the Company will begin to make the payments as is permitted under Code described in this Section 409A)7, and (ii) if provided that any other payments of money or other benefits due to the Executive hereunder could cause amounts that would have been payable earlier but for the application of an accelerated this Section 7(h), will be paid in lump-sum on the 409A Payment Date along with accrued interest at the rate of interest announced by the Company's primary bank from time to time as its prime rate from the date that payments would otherwise have been made under this Agreement. The balance of the severance payments will be payable in accordance with regular payroll timing and the COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in Code Section 409A(a)(2)(B)(i), or additional tax under any successor provision and the issued treasury regulations and rulings. "Separation from Service" or "Termination of Employment" means, with respect to any payment that is subject to Code Section 409A, such payments either (a) termination of Executive's employment with Company and all affiliates, or (b) a permanent reduction in the level of bona fide services Executive provides to Company and all affiliates to an amount that is 20% or less of the average level of bona fide services Executive provided to Company in the immediately preceding 36 months, with the level of bona fide service calculated in accordance with Treasury Regulations Section 1.409A-1(h)(1)(ii). Solely for purposes of determining whether Executive has a "Separation from Service," Executive's employment relationship is treated as continuing while Executive is on military leave, sick leave, or other benefits shall bona fide leave of absence (if the period of such leave does not exceed six months, or if longer, so long as Executive's right to reemployment with Company or an affiliate is provided either by statute or contract). If Executive's period of leave exceeds six months and Executive's right to reemployment is not provided either by statute or by contract, the employment relationship is deemed to terminate on the first day immediately following the expiration of such six-month period. Whether a termination of employment has occurred will be deferred if deferral will make such payment or other benefits compliant under determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to Code Section 409A. In If the event that payments under this Agreement are deferred pursuant payment is not subject to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a term termination of employment shall not will 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsgiven its ordinary meaning.

Compliance with Code Section 409A. The intent of This Agreement and the parties is that payments and benefits under this Agreement comply with or hereunder are exempt intended to be exempt, to the greatest extent possible, from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and to the deferral extent not so exempt, to comply with the requirements of Section 409A of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A)Code, and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make construed and administered consistent with such payment or other benefits compliant under Code Section 409A. intent. In the event that payments under the terms of this Agreement are deferred pursuant would subject the Executive to this taxes or penalties under Section in order 409A of the Code (“409A Penalties”), the Employer and the Executive shall cooperate diligently to prevent any accelerated tax or additional tax under Code Section 409A, then amend the terms of the Agreement to avoid such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein409A Penalties, to the extent required by Code Section 409Apossible; provided that such amendment shall not increase or reduce (in the aggregate) the amounts payable to the Executive hereunder. Any taxable reimbursement payable to the Executive pursuant to this Agreement shall be paid to the Executive no later than the last day of the calendar year following the calendar year in which the Executive incurred the reimbursable expense. Any amount of expenses eligible for taxable reimbursement, or such in-kind benefit provided, during a calendar year shall not affect the amount of such expenses eligible for reimbursement, or such in-kind benefit to be provided, during any other calendar year. The right to such reimbursement or such in-kind benefits pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit. 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. A termination of employment shall not be deemed to have occurred for purposes of any provision of this the 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 Code. If on the date of any such provision termination of this Agreement, references to employment the Executive is a “termination,specified employee” “termination within the meaning of employment” that term under Section 409A of the Code, then, notwithstanding any other provision herein, with regard to any payment or like terms shall mean benefit that is properly treated as nonqualified deferred compensation under Section 409A of the Code (after taking into account all exclusions applicable to such payment or benefit) and is payable on account of such separation from service, such payment or benefit shall not be made or provided prior to the expiration of the earlier of the six-month period measured from the date of such separation from service, or the Executive’s death. Each payment made under All payments and benefits delayed pursuant to the preceding provisions of this Agreement Section 8.5(a) shall be treated as a separate payment and paid to the right to a series Executive on the first payroll date following the end of installment payments under this Agreement is to be treated as a right to a series of separate paymentsthe delay period.

Compliance with Code Section 409A. The intent of the parties is that payments and If any amounts or benefits payable under this Agreement comply with or are exempt from on account of Employee’s termination of employment constitute deferred compensation subject to Section 409A of the Code, no payments or benefits shall be paid or provided until Employee incurs a separation from service within the meaning of Treas. Reg. § 1.409A-1(h) from the Company and any entity that would be considered a single employer with the Company under Code Sections 414(b) or 414(c) (“Separation from Service”). If, at the time of Employee’s Separation from Service, the Employee is a “specified employee” (within the meaning of Code Section 409A and Treas. Reg. §1.409A-3(i)(2)), the Company will not pay or provide any “Specified Benefits” (as defined herein) during the six-month period (the “409A Suspension Period”) beginning immediately after the Employee’s Separation from Service. For purposes of this Agreement, “Specified Benefits” are any amounts or benefits that would be subject to Code Section 409A penalties if the Company were to pay them, pursuant to this Agreement, on account of the Employee’s Separation from Service. This Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Company shall have complete discretion to interpret and construe this Agreement shall be interpreted and construed any associated documents in a any manner that establishes an exemption from (or compliance withotherwise conforms them to) the requirements of Code Section 409A. Any terms If, for any reason including imprecision in drafting, the Agreement does not accurately reflect its intended establishment of this Agreement that are undefined an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Company in a manner that complies with Code Section 409A fashion consistent herewith, as determined in the sole and absolute discretion of the Company. The Company reserves the right to unilaterally amend this Agreement without the extent necessary consent of the Employee in order to comply accurately reflect its correct interpretation and operation, as well as to maintain an exemption from or compliance with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the CodeNevertheless, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if notwithstanding any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 neither the Company nor any of its employees, directors, or their agents shall have any obligation to a “termination,” “termination of employment” mitigate, nor to hold the Employee harmless from, any or like terms shall mean separation from service. Each payment made all taxes (including any imposed under Code Section 409A) arising under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsAgreement.

Compliance with Code Section 409A. The intent This Agreement is intended to comply with, or be exempt from, the requirements of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code Code, and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies consistently with Code Section 409A to the extent necessary to comply with Code Section 409A. such intent. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with the Company, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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) until the first business day to occur following the date that is six (6) months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A409A of the Code), which initial payment will include the payments and benefits that would have been paid to Executive during such six (6) month period but for the delay required by Section 409A of the Code; and (ii) 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 Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, 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. In the event that payments under this Agreement are deferred pursuant to this Section 11(g) in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section 11(g) without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 11(g); provided, that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A409A of the Code, 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 Section 409A of the Code 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. Each For purposes of Section 409A of the Code, Executive’s right to receive any installment payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to receive a series of separate and distinct payments. Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a “deferral of compensation” within the meaning of Section 409A of the Code, (A) 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; (B) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred; and (C) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under Notwithstanding anything in this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif the Employee is subject to US Federal income tax on any part of the payment of the PSUs and the Award is subject to Section 409A, on then the date PSUs shall be subject to the following provisions of termination, this Section 9. If the Executive Employee is a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement any issuance or payment in respect of the payment PSUs under Section 8 of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date this Agreement above that is on account of the Employee’s separation from service and is scheduled to be paid within six months after such separation from service shall accrue without interest and shall be paid as soon as reasonably practicable after the first business day of the seventh month following beginning after the date of termination (or the earliest date Employee’s separation from service or, if earlier, as is permitted under Code soon as reasonably practicable following the Employee’s death. During such delayed distribution period, the Employee shall continue to be credited with cash amounts equal to dividends on Common Stock for the applicable Award pursuant to Section 409A)4 of this Agreement, and (ii) 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 Code Section 409A, such payments or other benefits amounts shall accrue without interest and shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. paid in a lump sum at the time specified in the preceding sentence. In the event of a “Change in Control” under section 6(b) of the Plan that payments under this Agreement are deferred pursuant to this Section is not also a “change in order to prevent any accelerated tax control event” within the meaning of Treas. Reg. §1.409A-3(i)(5)(i), the PSUs shall vest as set forth in section 6(a) of the Plan, but shall not be paid upon such Change in Control or additional tax under Code Section 409Atermination of employment as provided by section 6(a) of the Plan, then such payments and shall instead be paid at the time specified under the PSUs would otherwise be settled at the end of the applicable performance period in accordance with Section 8 of this Section without any interest thereonAgreement. Notwithstanding anything References to the contrary herein, to the extent required by Code Section 409A, a termination of employment and separation from service shall not be deemed interpreted to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following mean a termination of employment unless such termination is also a “separation from service” , within the meaning of Section 409A 409A, with the Company and all of the Code and, for its Affiliates treated as a single employer under Section 409A. This Agreement shall be construed in a manner consistent with Section 409A. For purposes of any such provision Section 409A, the payment of this Agreement, references to a “termination,” “termination dividend equivalents under Section 4 of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated construed as a separate payment earnings and the right to a series time and form of installment payments under this Agreement is to payment of such dividend equivalents shall be treated as a right to a series separately from the time and form of separate paymentspayment of the underlying PSUs.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments intended, and benefits under this Agreement shall be construed and interpreted, to comply with or are exempt from Section 409A of the Internal Revenue Code and this Agreement of 1986, as amended (the “Code”) and, if necessary, any provision shall be interpreted held null and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A void to the extent necessary such provision (or part thereof) fails to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date For purposes of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the each payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day compensation under this Agreement shall be treated as a separate payment of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder could cause the application compensation. Any amounts payable solely on account of an accelerated or additional tax under involuntary termination shall be excludible from the requirements of Code Section 409A, such payments either as separation pay or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything as short-term deferrals to the contrary herein, maximum possible extent. Any reference to the extent required by 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 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 Employee’s “termination,” “termination of employment” or like terms “termination of this Agreement” shall mean the Employee’s “separation from service. Each payment made under this Agreement shall ” as defined in Code Section 409A from the Company and all entities with whom the Company would be treated as a separate payment single employer for purposes of Code Section 409A. Nothing herein shall be construed as a guarantee of any particular tax treatment to Employee and the right Company shall have no liability to a series the Employee with respect to any penalties that might be imposed on the Employee by Code Section 409A for any failure of installment payments under this Agreement or otherwise. In the event that the Employee is a “specified employee” (as described in Code Section 409A), and any payment or benefit payable pursuant to this Agreement constitutes deferred compensation under Code Section 409A, then no such payment or benefit shall be treated made before the date that is six months after the Employee’s “separation from service” (as described in Code Section 409A) (or, if earlier, the date of the Employee’s death). Any payment or benefit delayed by reason of the prior sentence shall be paid out or provided in a right single lump sum at the end of such required delay period in order to a series of separate paymentscatch up to the original payment schedule.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments intended, and benefits under this Agreement shall be construed and interpreted, to comply with or are exempt from Section 409A of the Internal Revenue Code and this Agreement of 1986, as amended (the “Code”) and, if necessary, any provision shall be interpreted held null and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A void to the extent necessary such provision (or part thereof) fails to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date For purposes of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the each payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made compensation under this Agreement shall be treated as a separate payment of compensation. Any amounts payable solely on account of an involuntary termination shall be excludible from the requirements of Code Section 409A, either as separation pay or as short-term deferrals to the maximum possible extent. Any reference to the Employee’s “termination” or “termination of employment” shall mean the Employee’s “separation from service” as defined in Code Section 409A from the Company and all entities with whom the right to a series of installment payments under this Agreement is to Company would be treated as a right single employer for purposes of Code Section 409A. Nothing herein shall be construed as a guarantee of any particular tax treatment to Employee and the Company shall have no liability to the Employee with respect to any penalties that might be imposed on the Employee by Code Section 409A for any failure of this Agreement or otherwise. In the event that the Employee is a series “specified employee” (as described in Code Section 409A), and any payment or benefit payable pursuant to this Agreement constitutes deferred compensation under Code Section 409A, then no such payment or benefit shall be made before the date that is six months after the Employee’s “separation from service” (as described in Code Section 409A) (or, if earlier, the date of separate paymentsthe Employee’s death). Any payment or benefit delayed by reason of the prior sentence shall be paid out or provided in a single lump sum at the end of such required delay period in order to catch up to the original payment schedule.

Compliance with Code Section 409A. The intent Any provision of this Agreement to the contrary notwithstanding, all compensation payable pursuant to this Agreement that is determined by Intervoice in its sole judgment to be subject to Section 409A of the parties is Code shall be paid in a manner that payments and benefits under this Agreement comply with or are exempt from Intervoice in its sole judgment determines meets the requirements of Section 409A of the Code and this Agreement shall be interpreted and construed in a manner any related rules, regulations or other guidance. If Intervoice determines that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” (as defined by Intervoice in accordance with Section 409A of the Code and the regulations and other guidance thereunder) on the date of the Executive’s “separation from service” (as defined by Intervoice in accordance with Section 409A of the Code and the regulations and other guidance thereunder), then, notwithstanding any provision of this Agreement to the contrary, no payment of compensation under this Agreement that is subject to Section 409A of the Code shall be made to the Executive during the period lasting six months from the date of the Executive’s separation from service unless Intervoice determines that there is no reasonable basis for believing that making such payment would cause the Executive to suffer adverse tax consequences pursuant to Section 409A of the Code and the regulations and other guidance thereunder. If any payment to the Executive is delayed pursuant to the foregoing sentence, such amount instead shall be paid on the earliest date that payment can be made to the Executive under Section 409A of the Code and the regulations and other guidance thereunder. For purposes of Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such each payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made benefit due under this Agreement shall be treated as considered a separate payment payment, and the right Executive’s entitlement to a series of installment payments or benefits under this Agreement is to be treated as a right an entitlement to a series of separate payments.

Compliance with Code Section 409A. The intent To the extent applicable, it is intended that the payment of the parties is that payments and benefits under described in this Agreement comply with or are exempt from Section 409A of the Code Internal Revenue of 1986, as amended (the "Code"), and this all guidance or regulations thereunder ("Section 409A"), including compliance with all applicable exemptions from Section 409A (e.g., the short-term deferral exception and the "two times" pay exemption applicable to severance payments). This Agreement shall will at all times be interpreted and construed in a manner that establishes an exemption from (or to comply with Section 409A and should any provision be found not in compliance with) with Section 409A, the requirements of Code Section 409A. Any Executive hereby agrees to any changes to the terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies deemed necessary and required by legal counsel to bring the Agreement into compliance with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of including any such payments applicable exemptions. The Executive irrevocably waives any objections he or benefits hereunder (without she may have to any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date further changes that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall may be deferred if deferral will make such payment or other benefits compliant under Code required by Section 409A. In the no event will any payment that payments under this Agreement are deferred becomes payable pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination that is also a “separation from service” considered "deferred compensation" within the meaning of Section 409A 409A, if any, and does not satisfy any of the Code andapplicable exemptions under Section 409A, for be accelerated or delayed in violation of Section 409A. For purposes of any such provision of this Agreement, references to the benefits described in Section 1 of this Agreement shall not be paid or commence until the Executive incurs a “termination,” “termination of employment” or like terms shall mean "separation from service" as defined in Section 409A. PLEASE READ THIS AGREEMENT CAREFULLY. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsIT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. YOU AGREE THAT YOU RECEIVED VALUABLE CONSIDERATION IN EXCHANGE FOR ENTERING INTO THIS AGREEMENT AND THAT THE EMPLOYER ADVISED YOU IN WRITING TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. YOU PROMISE THAT NO REPRESENTATIONS OR INDUCEMENTS HAVE BEEN MADE TO YOU EXCEPT AS SET FORTH HEREIN, AND THAT YOU HAVE SIGNED THE SAME KNOWINGLY AND VOLUNTARILY. YOU HAVE BEEN PROVIDED AT LEAST TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT AND WAIVE AND RELEASE ALL CLAIMS AND RIGHTS INCLUDING BUT NOT LIMITED TO THOSE ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. YOU SHALL HAVE SEVEN (7) DAYS WITHIN WHICH TO REVOKE THIS AGREEMENT AND THIS AGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THAT REVOCATION PERIOD HAS EXPIRED. ANY SUCH REVOCATION MUST BE IN WRITING AND RECEIVED BY THE EMPLOYER, IN ACCORDANCE WITH THE NOTICE PROVISIONS SET FORTH IN SECTION 14, PRIOR TO THE END OF THE REVOCATION PERIOD.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and Code, as amended (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with the Company, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the BankUnited Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with the Company for purposes of any provision of this Agreement providing for the and no payment of amounts or benefits upon or following a termination of employment unless such termination is also shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitute deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. the Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 12(g); provided that neither the Company nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and Code, as amended (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with the Company, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with the Company for purposes of any provision of this Agreement providing for the and no payment of amounts or benefits upon or following a termination of employment unless such termination is also shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitute deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 12(g); provided that neither the Company nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent (a) Notwithstanding anything in this Agreement to the contrary, the receipt of the parties is that payments and any benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed subject to have occurred for purposes satisfaction 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 condition precedent that Executive undergo a “separation from service” within the meaning of Treas. Reg. § 1.409A-1(h) or any successor thereto. In addition, if Executive is deemed to be a “specified employee” within the meaning of that term under Code Section 409A 409A(a)(2)(B), then with regard to any payment or the provisions of any benefit that is required to be delayed pursuant to Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the Code and, for purposes six (6) month period measured from the date of any such provision of this Agreement, references to a Executive’s “termination,” “termination of employment” or like terms shall mean separation from service” (as such term is defined in Treas. Each payment made Reg. § 1.409A-1(h)), or (ii) the date of Executive’s death (the “Delay Period”). Within ten (10) days following the expiration of the Delay Period, all payments and benefits delayed pursuant to this section (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 Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be treated as a separate paid or provided in accordance with the normal payment and dates specified for them herein. To the right extent that the foregoing applies to a series the provision of installment payments under this Agreement is any ongoing welfare benefits to Executive that would not be required to be treated as a right delayed if the premiums therefore were paid by Executive, Executive shall pay the full costs of premiums for such welfare benefits during the Delay Period and Penns Xxxxx or JSSB shall pay Executive an amount equal to a series the amount of separate paymentssuch premiums paid by Executive during the Delay Period within ten (10) days after the conclusion of such Delay Period.

Compliance with Code Section 409A. The intent of It is intended that the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinSeverance Benefits are, to the greatest extent required by Code Section 409Apossible, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for exempt from 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 application of Section 409A of the Code and(“Section 409A”) and the Plan shall be construed and interpreted accordingly. However, for purposes if the Company (or, if applicable, the successor entity thereto) determines that all or a portion of the payments and benefits provided under the Plan constitute "deferred compensation" under Section 409A and that the Eligible Employee is a "specified employee" of the Company (or Covered Employer) or any successor entity thereto, as such provision term is defined in Section 409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the incurrence of this Agreementthe adverse personal tax consequences under Section 409A, references the timing of the applicable payments shall be delayed until the first payroll date following the date that is six months following the Eligible Employee's "separation from service" (as defined under Section 409A) and the Company (or Covered Employer) (or the successor entity thereto, as applicable) shall (A) pay to the Eligible Employee a “termination,” “lump sum amount equal to the sum of the payments that the Eligible Employee would otherwise have received during such six-month period had no such delay been imposed, and (B) commence paying the balance of the payments in accordance with the applicable payment schedule set forth in the Plan. To the extent required by Section 409A, any payments to be made to an Eligible Employee upon his or her termination of employment” or like terms employment shall mean only be made upon such Eligible Employee’s separation from service. Each payment made Neither the Company nor any Covered Employer makes any representations that the payments and benefits provided under this Agreement the Plan comply with Section 409A and in no event shall the Company or any Covered Employer be treated as a separate payment and liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the right to a series Eligible Employee on account of installment payments under this Agreement is to be treated as a right to a series of separate payments.noncompliance with Section 409A.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with the Company, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with the Company for purposes of any provision of this Agreement providing for the and no payment shall be due to Executive under this Agreement on account of amounts or benefits upon or following a termination of employment unless any such termination is also until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 11(g); provided that neither the Company nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent of To the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and construed in a manner Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that establishes an exemption from (or compliance with) may be issued after the requirements Effective Date. A termination of Code Section 409A. Any terms employment shall not be deemed to have occurred for purposes of this Agreement providing for the payment of any amounts or benefits that are undefined or ambiguous shall be interpreted in a manner that complies with Code considered nonqualified deferred compensation under Section 409A upon or following a termination of employment, unless such termination is also a “separation from service” within the meaning of Section 409A and the payment thereof prior to the extent necessary to comply with Code a “separation from service” would violate Section 409A. For purposes of any such provision of this Agreement relating to any such payments or benefits, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” Notwithstanding anything herein any provision of the Agreement to the contrary, (i) if, on if at the date time of termination, the Executive’s termination of employment with the Company the Executive is a “specified employee” as defined in Section 409A Code and related Department of the Code, Treasury guidance and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will shall defer 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) until the date that is the first business six months and one day of the seventh month following the date Executive’s termination of termination employment with the Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) 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 Code Section 409A409A of the Code, the Company may (a) adopt such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything amendments to the contrary hereinAgreement, including amendments with retroactive effect, that the Company determines necessary or appropriate to preserve the extent required intended tax treatment of the benefits provided by Code Section 409A, a termination of employment shall not be deemed the Agreement and/or (b) take such other actions as the Company determines necessary or appropriate to have occurred for purposes of any provision of this Agreement providing for comply with 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 requirements of Section 409A of the Code and, for purposes and related Department of any such provision Treasury guidance. The Company shall consult with the Executive in good faith regarding the implementation of this Agreement, references Section 14; provided that neither the Company nor any of its employees or representatives shall have any liability to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsExecutive with respect thereto.

Compliance with Code Section 409A. The intent With respect to reimbursements or in-kind benefits provided under this Agreement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement, (b) any reimbursement of provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement) shall be made not later than December 31st of the parties year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that payments and benefits any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall the treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of imposed under Code Section 409A. Any terms In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Code Section 409A, the parties agree to amend this Agreement that are undefined or ambiguous shall be interpreted in order to bring this Agreement into compliance with Code Section 409A; and thereafter interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the deferral of the commencement of Executive shall be responsible for any payments taxes, penalties and interest imposed on him under or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 in connection with the Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, Executive’s termination of employment with the Company Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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) until the date that is the first business day of the seventh month following Executive’s termination of employment with the date of termination Company (or the earliest date as is permitted under Code Section 409A409A of the Code), and (ii) 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 Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, 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. In the event that payments under this Agreement are deferred pursuant to this Section 11(i) in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section 11(i) without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 11(i); provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation Separation from serviceService” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean separation Separation from serviceService. Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a “deferral of compensation” within the meaning of Section 409A of the Code (x) 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, (y) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (z) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent Any provisions of the parties is Agreement that payments are subject to Code Section 409A and benefits under this Agreement the regulations and other authority issued thereunder by the appropriate governmental entity (“Section 409A”) are intended to comply with all applicable requirements of Section 409A, or are exempt an exemption from the application of Section 409A of the Code 409A, and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms administered accordingly. Notwithstanding any provision of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts any amount or benefits benefit that constitutes “non-qualified deferred compensation” (within the meaning of Section 409A) upon or following a termination of Employee’s employment unless such termination is also a “separation Separation from service” within the meaning of Section 409A of the Code Service and, for purposes of any such provision of this Agreementprovision, references herein to a “termination,” “termination of employment” or like terms shall mean separation a Separation from serviceService. Notwithstanding any provision of this Agreement to the contrary, if any payment or other benefit provided herein would be subject to additional taxes and interest under Section 409A because the timing of such payment is not delayed as required by Section 409A for a Specified Employee, then if Employee is on the applicable date a Specified Employee, any such payment that Employee would otherwise be entitled to receive during the first six months following his Separation from Service shall be accumulated and paid, within ten (10) days after the date that is six months following the Employment Termination Date, or such earlier date upon which such amount can be paid under Section 409A without being subject to such additional taxes and interest such as, for example, upon Employee’s death. With respect to any amounts or benefits that are subject to Section 409A, this Agreement shall in all respects be administered in accordance with Section 409A. Each payment made under this Agreement shall be treated as a separate payment for purposes of Section 409A. In no event may Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. All reimbursements and the right to a series of installment payments in-kind benefits provided under this Agreement is that constitute non-qualified deferred compensation (within the meaning of Section 409A) shall be made or provided in accordance with the requirements of Section 409A. Within the time period permitted by Section 409A, the Company may, in consultation with Employee, modify the Agreement in the least restrictive manner necessary and without any diminution in the value of payments or other benefits to be treated as a right Employee hereunder, in order to a series avoid the imposition of separate paymentsaccelerated tax, additional tax and/or penalties on Employee under Section 409A. Notwithstanding the foregoing, the Company makes no representations, warranties, or guarantees regarding the tax treatment of this Agreement or the Severance Payment under Section 409A or otherwise, and has advised Employee to obtain his own tax advisor regarding the tax consequences of this Agreement.

Compliance with Code Section 409A. The intent of the parties is that payments Compensation and benefits payable under this the Agreement comply with or are intended to be exempt from the definition of “nonqualified deferred compensation” under Section 409A of the Internal Revenue Code and of 1986, as amended (the “Code”) in accordance with one or more of the exemptions available under the Treasury Regulations promulgated under Section 409A. In this regard, each such payment that is made in a series of scheduled installments shall be deemed a separate payment for purposes of Section 409A. To the extent that any amounts or benefits payable under this Agreement are or become subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation under Section 409A, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and construed administered to the extent possible in a manner consistent with the foregoing statement of intent. Payments made from the date of your termination through March 15th of the calendar year following such termination are intended to be exempt from Section 409A pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations. Payments made following said March 15th are intended to be made upon an involuntary termination from service and payable pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations, to the maximum extent permitted by said provision. Notwithstanding any contrary provision of this Agreement, any amount or benefit that establishes fails to qualify for an exemption from Section 409A shall be subject to the distribution requirements of Section 409A(a)(2)(A) of the Code, including, without limitation, the requirement of Section 409A(a)(2)(B)(i) of the Code that amounts or benefits payable to you upon separation from service be delayed until the first regular payroll date which occurs more than 6 months after separation from service (or compliance withif earlier, the date of your death) if you are a “specified employee” within the requirements meaning of the aforesaid section of the Code Section 409A. Any at the time of such separation from service, with the first of such payments including all payments which would have been made during the period of such delay without regard thereto and without interest, and with subsequent payments, if any, made in accordance with the dates and terms otherwise provided herein. Your date of this Agreement termination for purposes of determining the date that are undefined any amount or ambiguous shall be interpreted in a manner benefit that complies with is treated as nonqualified deferred compensation under Code Section 409A is to the extent necessary be paid (or in determining whether an exemption to comply with Code Section 409A. Notwithstanding anything herein to the contrarysuch treatment applies), (i) if, and for purposes of determining whether you are a “specified employee” on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until shall be the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to on which you 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 incurred 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 service409A(a)(2)(A)(i) and applicable guidance thereunder. Each payment made under In each case where this Agreement provides for the payment of an amount or benefit that constitutes nonqualified deferred compensation under Section 409A to be made to you within a designated period and such period begins and ends in different calendar years, the exact payment date within such range shall be treated as a separate payment determined by the Company, in its sole discretion, and the you shall have no right to a series of installment payments under this Agreement is to designate the year in which the payment shall be treated as a right to a series of separate paymentsmade.

Compliance with Code Section 409A. The intent of It is intended that the parties is that payments and benefits under this Agreement shall comply with or are be exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements provisions of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A and the Treasury Regulations relating thereto so as not to subject you to the extent necessary to comply with payment of additional taxes and interest under Code Section 409A. Notwithstanding anything herein to If the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined Company determines in Section 409A of the Code, and the deferral of the commencement of its good faith discretion that any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order under this Agreement may be or become subject to prevent any accelerated or additional tax income inclusion under Code Section 409A, then the Company will defer may make such changes to this Agreement as the commencement Company determines to be necessary or desirable to avoid the imposition of the payment of any such payments taxes or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted interest under Code Section 409A), provided, that, (i) such changes shall, to the greatest extent reasonably practicable, preserve the existing economics of the arrangement, and (ii) if in no event shall the Company have any obligation to make any such changes or to indemnify you or any other payments of money person for any failure to do so, and you shall be solely liable for any taxes or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax interest imposed under Code Section 409A409A or any corresponding provision of state law. In furtherance of this intent, such payments or other benefits this Agreement shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section construed and interpreted in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereona manner consistent with these intentions. Notwithstanding anything any provision to the contrary herein, to the extent required by no payment or distribution under this Agreement which constitutes an item of deferred compensation under Code Section 409A, a 409A and becomes payable by reason of your termination of employment shall not with the Company will be deemed made to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a you unless your termination of employment unless such termination is also constitutes a “separation from service” (as such term is defined in Treasury Regulations issued under Code Section 409A). In addition, no such payment or distribution will be made to you prior to the earlier of (i) the expiration of the six-month period measured from the date of your “separation from service” (as such term is defined in Treasury Regulations issued under Code Section 409A) or (ii) the date of your death, if you are deemed at the time of such separation from service to be a “specified employee” within the meaning of that term under Code Section 409A and to the extent such delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2). All payments and benefits which had been delayed pursuant to the immediately preceding sentence shall be paid to you in a lump sum upon expiration of such six-month period (or if earlier upon your death). To the Code andextent that any benefits pursuant to Paragraph 7(a), for purposes of 7(b) or reimbursements pursuant to Paragraph 6(b) are taxable to you, any reimbursement payment due to you pursuant to any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment paid to you on or before the last day of your taxable year following the taxable year in which the related expense was incurred. The benefits and reimbursements pursuant to such provisions are not subject to liquidation or exchange for another benefit and the right to a series amount of installment payments under this Agreement is to be treated as a right to a series such benefits and reimbursements that you receive in one taxable year shall not affect the amount of separate paymentssuch benefits or reimbursements that you receive in any other taxable year.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and Code, as amended (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with NewBank, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company NewBank will defer 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) until the date that is the first business day six months following Executive’s termination of the seventh month following the date of termination employment with NewBank (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the NewBank Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with NewBank for purposes of any provision of this Agreement providing for the and no payment of amounts or benefits upon or following a termination of employment unless such termination is also shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from NewBank within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitute deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by NewBank no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. NewBank shall consult with Executive in good faith regarding the implementation of the provisions of this Section 12(g); provided that neither NewBank nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent A. It is the intention of Hxxxxx and the parties is Executive that payments the payments, benefits and benefits under rights to which the Executive could be entitled pursuant to this Agreement comply with or are exempt from Code Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), the Treasury regulations and other guidance promulgated or issued thereunder (“Section 409A”), to the extent that the requirements of Section 409A are applicable thereto, and after application of all available exemptions, including but not limited to, the “short-term deferral rule” and “involuntary separation pay plan exception” and the provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms intention. If any provision of this Agreement that are undefined (or ambiguous shall be interpreted in a manner that complies with of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A 409A, Hxxxxx shall, upon the specific request of the Executive, use its reasonable business efforts to the extent necessary in good faith reform such provision to comply with Code Section 409A. Notwithstanding anything herein 409A; provided, that to the contrary, (i) if, on the date of terminationmaximum extent practicable, the Executive is a “specified employee” as defined in Section 409A of the Code, original intent and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due economic benefit to the Executive hereunder and Hxxxxx of the applicable provision shall be maintained, but Hxxxxx shall have no obligation to make any changes that could cause create any additional economic cost or loss of benefit to Hxxxxx. Hxxxxx shall not have any liability to the Executive with respect to tax obligations that result from the application of an accelerated or additional tax under Code Section 409A, such 409A and makes no representation with respect to the tax treatment of the payments or other and/or benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments provided under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonAgreement. Notwithstanding anything to the contrary herein, to the extent Any provision required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of compliance with 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 that is omitted from service. Each payment made under this Agreement shall be treated as incorporated herein by reference and shall apply retroactively, if necessary, and be deemed a separate payment and the right to a series part of installment payments under this Agreement is to be treated the same extent as a right to a series of separate paymentsthough expressly set forth herein.

Compliance with Code Section 409A. The intent Any provisions of the parties is Agreement that payments are subject to Code Section 409A and benefits under this Agreement the regulations and other authority issued thereunder by the appropriate governmental entity (“Section 409A”) are intended to comply with all applicable requirements of Section 409A, or are exempt an exemption from the application of Section 409A of the Code 409A, and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms administered accordingly. Notwithstanding any provision of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts any amount or benefits benefit that constitutes “non-qualified deferred compensation” (within the meaning of Section 409A) upon or following a termination of Employee’s employment unless such termination is also a “separation Separation from service” within the meaning of Section 409A of the Code Service and, for purposes of any such provision of this Agreementprovision, references herein to a “termination,” “termination of employment” or like terms shall mean separation a Separation from serviceService. Notwithstanding any provision of this Agreement to the contrary, if any payment or other benefit provided herein would be subject to additional taxes and interest under Section 409A because the timing of such payment is not delayed as required by Section 409A for a Specified Employee, then if Employee is on the applicable date a Specified Employee, any such payment that Employee would otherwise be entitled to receive during the first six months following his Separation from Service shall be accumulated and paid, within ten (10) days after the date that is six months following the Employment Termination Date, or such earlier date upon which such amount can be paid under Section 409A without being subject to such additional taxes and interest such as, for example, upon he Employee’s death. With respect to any amounts or benefits that are subject to Section 409A, this Agreement shall in all respects be administered in accordance with Section 409A. Each payment made under this Agreement shall be treated as a separate payment for purposes of Section 409A. In no event may Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. All reimbursements and the right to a series of installment payments in-kind benefits provided under this Agreement is that constitute deferred compensation within the meaning of Section 409A shall be made or provided in accordance with the requirements of Section 409A. Within the time period permitted by Section 409A, the Company may, in consultation with Employee, modify the Agreement in the least restrictive manner necessary and without any diminution in the value of payments or other benefits to be treated as a right Employee hereunder, in order to a series avoid the imposition of separate paymentsaccelerated tax, additional tax and/or penalties on Employee under Section 409A. Notwithstanding the foregoing, the Company makes no representations, warranties, or guarantees regarding the tax treatment of this Agreement or the Severance Payment under Section 409A or otherwise, and has advised Employee to obtain his own tax advisor regarding the tax consequences of this Agreement.

Compliance with Code Section 409A. The intent No Award (or modification thereof) shall provide for deferral of the parties is compensation that payments and benefits under this Agreement does not comply with or are exempt from Section 409A of the Code and unless the Committee, at the time of grant, specifically provides that the Award is not intended to comply with Section 409A of the Code. Any ambiguities in this Plan or an Award Agreement shall be interpreted and construed in a manner so that establishes an exemption from (or compliance with) benefits hereunder shall not be subject to tax under Section 409A of the requirements of Code Section 409A. Any terms Code. Notwithstanding any provision of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein Plan to the contrary, (i) ifif one or more of the payments or benefits received or to be received by a Participant pursuant to an Award would cause the Participant to incur any additional tax or interest under Section 409A of the Code, the Committee may reform such provision to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of section 409A of the Code. In the event that it is reasonably determined by the Committee that, as a result of Section 409A of the Code, payments in respect of any Award under the Plan may not be made at the time contemplated by the terms of the Plan or the relevant Award Agreement, as the case may be, without causing the Participant holding such Award to be subject to additional taxation under Section 409A of the Code, the Company will make such payment on the date first day that would not result in the Participant incurring any tax liability under Section 409A of terminationthe Code; which, if the Executive Participant is a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then shall be the Company will defer first day following the commencement six-month period beginning on the date of Participant’s termination of employment. Unless otherwise provided in an Award Agreement or other document governing the issuance of such Award, payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided Performance Award intended to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date qualify as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from serviceshort term deferral” within the meaning of Section 1.409A-1(b)(4)(i) of the U.S. Treasury Regulations shall be made between the first day following the close of the applicable performance period and the last day of the “applicable 2 1⁄2 month period” as defined therein. Notwithstanding the foregoing, each Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on him or her, or in respect of any payment or benefit delivered in connection with the Plan (including any taxes and penalties under Section 409A of the Code andCode), for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right Company shall not have any obligation to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsindemnify or otherwise hold any Participant harmless from any or all such taxes or penalties.

Compliance with Code Section 409A. The intent of To the parties is extent that payments and benefits under this Agreement comply with or are exempt from Section 409A 409A(a)(2)(B)(i) of the Code and the guidance thereunder would require any payment or benefit otherwise provided for by this Agreement shall to be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary delayed in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then then, to the extent permitted by Section 409A of the Code, the Company will defer the commencement of the applicable payment of any such payments or benefits benefit hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month six (6) months following the date of termination Separation Date (or the earliest date as is permitted under Code Section 409A409A of the Code). If any payments or benefits are deferred due to such requirements, and (ii) if any other payments of money or other benefits due such amounts will be paid in a lump sum to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonend of such six (6) month period. Notwithstanding anything to If the contrary hereinExecutive dies during such six-month period, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning withheld on account of Section 409A of the Code andwill be paid to the Executive’s estate within fifteen (15) days of the Executive’s death. Without limiting the generality of the foregoing, all payments under this Agreement are intended to comply with Section 409A of the Code, and this Agreement will be administered and interpreted in accordance with such requirements and applicable guidance issued thereunder by the Internal Revenue Service and/or the Department of the Treasury, and if necessary, any applicable provision of this Agreement shall be deemed amended to comply with Section 409A of the Code and the guidance issued thereunder. The Company reserves the right to modify the terms of this Agreement as necessary to comply with such Section of the Code and applicable guidance. Further, for purposes of any such provision the limitations on nonqualified deferred compensation under Section 409A of this Agreementthe Code, references to a “termination,” “termination each payment of employment” or like terms shall mean separation from service. Each payment made compensation under this Agreement shall be treated as a separate payment of compensation. Any amounts payable solely on account of an involuntary separation from service of the Executive within the meaning of Section 409A of the Code shall be excludible from the requirements of Section 409A of the Code, either as involuntary separation pay or as short-term deferral amounts to the maximum possible extent. Any reimbursements or in-kind benefits provided under this Agreement 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 is for expenses incurred during the period of time specified in this Agreement (or if no period is specified, the lifetime of the Executive), (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 no later than the last day of the calendar year following the calendar 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. In no event may the Executive, directly or indirectly, designate the calendar year of a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentspayment.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits Any payment under this Agreement comply with or are exempt from Section 409A of 7 is subject to the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms provisions of this Agreement that are undefined Section 7(h) (except for a payment pursuant to Disability or ambiguous shall be interpreted in a manner that complies with Code death under Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, 7(d) or (i) if, on the date of termination, the e)). If Executive is a “specified employeeSpecified Employee” as defined of the Company for purposes of Code Section 409A at the time of a payment event in Section 409A of the Code, 7(b) and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under if no exception from Code Section 409A409A applies in whole or in part, then the severance or other payments will be made to Executive by the Company will defer 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) until the date that is on the first business day of the seventh month following the date of termination the Executive’s Separation from Service (or the earliest date “409A Payment Date”). Should this Section 7(h) result in a delay of payments to Executive, the Company will begin to make the payments as is permitted under Code described in this Section 409A)7, and (ii) if provided that any other payments of money or other benefits due to the Executive hereunder could cause amounts that would have been payable earlier but for the application of an accelerated this Section 7(h), will be paid in lump-sum on the 409A Payment Date along with accrued interest at the rate of interest announced by the Company’s primary bank from time to time as its prime rate from the date that payments would otherwise have been made under this Agreement. The balance of the severance payments will be payable in accordance with regular payroll timing and the COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in Code Section 409A(a)(2)(B)(i), or additional tax under any successor provision and the issued treasury regulations and rulings. “Separation from Service” or “Termination of Employment” means, with respect to any payment that is subject to Code Section 409A, such payments either (a) termination of Executive’s employment with Company and all affiliates, or (b) a permanent reduction in the level of bona fide services Executive provides to Company and all affiliates to an amount that is 20% or less of the average level of bona fide services Executive provided to Company in the immediately preceding 36 months, with the level of bona fide service calculated in accordance with Treasury Regulations Section 1.409A-1(h)(1)(ii). Solely for purposes of determining whether Executive has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other benefits shall bona fide leave of absence (if the period of such leave does not exceed six months, or if longer, so long as Executive’s right to reemployment with Company or an affiliate is provided either by statute or contract). If Executive’s period of leave exceeds six months and Executive’s right to reemployment is not provided either by statute or by contract, the employment relationship is deemed to terminate on the first day immediately following the expiration of such six-month period. Whether a termination of employment has occurred will be deferred if deferral will make such payment or other benefits compliant under determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to Code Section 409A. In If the event that payments under this Agreement are deferred pursuant payment is not subject to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a term termination of employment shall not will 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsgiven its ordinary meaning.

Compliance with Code Section 409A. The intent A. It is the intention of Hxxxxx and the parties is Executive that payments the payments, benefits and benefits under rights to which the Executive could be entitled pursuant to this Agreement comply with Code Section 409A, the Treasury regulations and other guidance promulgated or are exempt from issued thereunder (collectively for purposes of this paragraph “22”, “Section 409A”) to the extent that the requirements of Section 409A are applicable thereto, and after application of all available exemptions, including but not limited to the Code “short-term deferral rule” and “involuntary separation pay plan exception” and the provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonintention. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes of If any provision of this Agreement providing for (or of any award of compensation, including equity compensation or benefits) would cause the payment Executive to incur any additional tax or interest under Section 409A, Hxxxxx shall, upon the specific request of amounts the Executive, use its reasonable business efforts to in good faith reform such provision to comply with Section 409A; provided that, to the maximum extent practicable, the original intent and economic benefit to the Executive and Hxxxxx of the applicable provision shall be maintained, but Hxxxxx shall have no obligation to make any changes that could create any additional economic cost or benefits upon or following a termination loss of employment unless such termination is also a “separation benefit to Hxxxxx. Notwithstanding the preceding, Hxxxxx shall indemnify the Executive with respect to tax obligations that result from service” within the meaning application of Section 409A with respect to the payments and/or benefits provided under this Agreement to the extent such tax obligations arise from the fact that the Employment Agreement did not reflect certain provisions of the Code and, First Amendment to the Amended and Restated Employment Agreement that were intended to be carried over without change. Any provision required for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation compliance with Section 409A that is omitted from service. Each payment made under this Agreement shall be treated as incorporated herein by reference and shall apply retroactively, if necessary, and be deemed a separate payment and the right to a series part of installment payments under this Agreement is to be treated the same extent as a right to a series of separate paymentsthough expressly set forth herein.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement intended to comply with or are exempt from Section 409A of the Code and this Agreement shall will be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. so interpreted. Notwithstanding anything herein to the contrary, (i) if, on at the date time of terminationEmployee’s termination of employment with the Company, the Executive Employee is a “specified employee” as defined in Section 409A of the Code, and if the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent the imposition of any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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 ExecutiveEmployee) until the date that is the first business day of the seventh month six months following the date of termination Employee’s Termination Date (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) 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 Code Section 409A409A of the Code, such the parties agree to restructure the payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of comply with Section 409A of the Code andin a manner which does not diminish the value of such payments and benefits to the Employee. If, for purposes after payment of any such provision of amounts or benefits under this Agreement, references to a “termination,” “termination the Internal Revenue Service determines that the payment of employment” such amounts or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment benefits does not comply with Section 409A of the Code, and the right Internal Revenue Service imposes upon the Employee accelerated or additional tax, penalties, interest or other charges under Section 409A of the Code, the Company shall pay to a series the Employee before the due date that the Employee is required to make payment to the Internal Revenue Service, an amount such that, after payment of installment payments under this Agreement is all taxes, penalties, or interest in respect thereof, the Employee will have remaining the full amount necessary to be treated as a right satisfy the Employee’s obligation to a series of separate paymentspay any accelerated or additional tax, penalties, interest and charges so imposed by the Internal Revenue Service.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits Any payment under this Agreement comply with or are exempt from Section 409A of 7 is subject to the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms provisions of this Agreement that are undefined Section 7(i) (except for a payment pursuant to Disability or ambiguous shall be interpreted in a manner that complies with Code death under Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, 7(e) or (i) if, on the date of termination, the f)). If Executive is a “specified employeeSpecified Employee” as defined in of the Company for purposes of Code Section 409A at the time of the Code, a payment event in Sections 7(b) or (c) and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under if no exception from Code Section 409A409A applies in whole or in part, then the severance or other payments will be made to Executive by the Company will defer 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) until the date that is on the first business day of the seventh month following the date of termination the Executive’s Separation from Service (or the earliest date “409A Payment Date”). Should this Section 7(i) result in a delay of payments to Executive, the Company will begin to make the payments as is permitted under Code described in this Section 409A)7, and (ii) if provided that any other payments of money or other benefits due to the Executive hereunder could cause amounts that would have been payable earlier but for the application of an accelerated this Section 7(i), will be paid in lump-sum on the 409A Payment Date along with accrued interest at the rate of interest announced by the Company’s primary bank from time to time as its prime rate from the date that payments would otherwise have been made under this Agreement. The balance of the severance payments will be payable in accordance with regular payroll timing and the COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in Code Section 409A(a)(2)(B)(i), or additional tax under any successor provision and the issued treasury regulations and rulings. “Separation from Service” or “Termination of Employment” means, with respect to any payment that is subject to Code Section 409A, such payments either (a) termination of Executive’s employment with Company and all affiliates, or (b) a permanent reduction in the level of bona fide services Executive provides to Company and all affiliates to an amount that is 20% or less of the average level of bona fide services Executive provided to Company in the immediately preceding 36 months, with the level of bona fide service calculated in accordance with Treasury Regulations Section 1.409A-1(h)(1)(ii). Solely for purposes of determining whether Executive has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other benefits shall bona fide leave of absence (if the period of such leave does not exceed six months, or if longer, so long as Executive’s right to reemployment with Company or an affiliate is provided either by statute or contract). If Executive’s period of leave exceeds six months and Executive’s right to reemployment is not provided either by statute or by contract, the employment relationship is deemed to terminate on the first day immediately following the expiration of such six-month period. Whether a termination of employment has occurred will be deferred if deferral will make such payment or other benefits compliant under determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to Code Section 409A. In If the event that payments under this Agreement are deferred pursuant payment is not subject to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a term termination of employment shall not will 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsgiven its ordinary meaning.

Compliance with Code Section 409A. The intent It is the intention of the parties is Company and the Participant that payments the payments, benefits and benefits under rights to which the Participant could be entitled pursuant to this Agreement comply with or are be exempt from Section 409A (to the extent that the requirements of Section 409A are applicable thereto), after application of all available exemptions (including without limitation the Code and short-term deferral rule, the involuntary separation pay plan exception, or the specified payment date rule). The provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms intention. If any provision of this Agreement that are undefined contravenes Section 409A, or ambiguous shall be interpreted would cause Participant to incur any additional tax, interest or penalty under Section 409A, the Company and Participant agree in a manner that complies with Code Section 409A good faith to the extent necessary reform this Agreement to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then or to take such other actions as the Company will defer and the commencement of the payment of any such payments Participant deem necessary or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided appropriate, to maintain, to the Executive) until maximum extent practicable, without violating the date that is the first business day provisions of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments the original intent and economic benefit to the Participant and the Company of the applicable provision; provided that the Company shall have no obligation to make any changes that could create any additional economic cost or other benefits loss of benefit to the Company. Any provision required for compliance with Section 409A that is omitted from this Agreement shall be deferred incorporated herein by reference and shall apply retroactively, if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under necessary, and be deemed a part of this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonsame extent as though expressly set forth herein. Notwithstanding anything to the contrary hereincontrary, the Company makes no representation with respect to the tax treatment of the payments and/or benefits provided under this Agreement, and in no event will Company be liable for, pay or reimburse any additional tax, interest or penalties that may be imposed on the Participant under Section 409A. If required to comply with Section 409A (but only to the extent required by Code Section 409Aso required), 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 Separation from serviceService” within the meaning of Section 409A of the Code (excluding death) and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” “separation from employment,” “termination,” or like terms shall mean separation “Separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsService” (excluding death).

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and shall operate so that the payments and benefits set forth herein shall either be exempt from the requirements of Code Section 409A or shall comply with the requirements of such provision; provided, however, that in no event shall the Company be liable to the Consultant for or with respect to any taxes, penalties or interest which may be imposed upon the Consultant pursuant to Code Section 409A. For purposes of this Agreement, the terms "termination of service" and variations thereof shall mean a "separation from service" as defined in Treasury Regulation Section 1.409A-1(h) (i"Separation From Service"). To the extent that any payment under this Agreement constitutes a "deferral of compensation" subject to Code Section 409A (a "409A Payment") ifthat is to be paid upon a Separation From Service, then, (A) in the event that a termination of Consultant’s services does not constitute a Separation From Service, such 409A Payment shall begin at such time as the Consultant has otherwise experienced such a Separation from Service, and the date of such Separation from Service shall be deemed to be the termination date of this Agreement, and (B) if on the date of terminationthe Consultant’s Separation from Service, the Executive Consultant is deemed to be a “"specified employee” " of a public company, as such term is defined in Treasury Regulation Section 1.409A-l(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Consultant until six (6) months and one day after the Consultant’s Separation from Service, and shall be paid without adjustment for the delay in payment. The Consultant hereby acknowledges that it has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Consultant of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A of and applicable state tax law. The Consultant hereby agrees to bear the Code, and the deferral of the commencement entire risk of any payments or benefits otherwise payable hereunder as a result of such termination of employment adverse federal and state tax consequences and penalty taxes in the event any payment pursuant to this Agreement is necessary in order deemed to prevent any accelerated or additional tax under be subject to Code Section 409A, then and that no representations have been made to the Company will defer Consultant relating to the commencement of the payment tax treatment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided payment pursuant to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted this Agreement under Code Section 409A), 409A and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes corresponding provisions 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsapplicable state income tax laws.

Compliance with Code Section 409A. The intent To the extent applicable, it is intended that the payment of the parties is that payments and benefits under described in this Agreement comply with or are exempt from Section 409A of the Code Internal Revenue of 1986, as amended (the “Code”), and this all guidance or regulations thereunder (“Section 409A”), including compliance with all applicable exemptions from Section 409A (e.g., the short-term deferral exception and the “two times” pay exemption applicable to severance payments). This Agreement shall will at all times be interpreted and construed in a manner that establishes an exemption from (or to comply with Section 409A and should any provision be found not in compliance with) with Section 409A, the requirements of Code Section 409A. Any Executive hereby agrees to any changes to the terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies deemed necessary and required by legal counsel to bring the Agreement into compliance with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company including any applicable exemptions. The Executive irrevocably waives any objections he or she may have to any further changes that may be required by Section 409A. In no event will defer the commencement of the any payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided that becomes payable pursuant to the Executive) until the date this Agreement that is considered “deferred compensation” within the first business day meaning of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant any, and does not satisfy any of the applicable exemptions under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at accelerated or delayed in violation of Section 409A. For purposes of this Agreement, the time specified under benefits described in Section 1 of this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment Agreement shall not be deemed to have occurred for purposes of any provision of this Agreement providing for paid or commence until the payment of amounts or benefits upon or following a termination of employment unless such termination is also Executive incurs a “separation from service” within the meaning of as defined in Section 409A of the Code and409A. PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. YOU AGREE THAT YOU RECEIVED VALUABLE CONSIDERATION IN EXCHANGE FOR ENTERING INTO THIS AGREEMENT AND THAT THE EMPLOYER ADVISED YOU IN WRITING TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. YOU PROMISE THAT NO REPRESENTATIONS OR INDUCEMENTS HAVE BEEN MADE TO YOU EXCEPT AS SET FORTH HEREIN, for purposes of any such provision of this AgreementAND THAT YOU HAVE SIGNED THE SAME KNOWINGLY AND VOLUNTARILY. YOU HAVE BEEN PROVIDED AT LEAST TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT AND WAIVE AND RELEASE ALL CLAIMS AND RIGHTS INCLUDING BUT NOT LIMITED TO THOSE ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. YOU SHALL HAVE SEVEN (7) DAYS WITHIN WHICH TO REVOKE THIS AGREEMENT AND THIS AGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THAT REVOCATION PERIOD HAS EXPIRED. ANY SUCH REVOCATION MUST BE IN WRITING AND RECEIVED BY THE EMPLOYER, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsIN ACCORDANCE WITH THE NOTICE PROVISIONS SET FORTH IN SECTION 14, PRIOR TO THE END OF THE REVOCATION PERIOD.

Compliance with Code Section 409A. The intent It is intended that all of the parties is that payments and benefits payable under this Agreement comply with or are exempt satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether Severance Payments, expense reimbursements or otherwise) shall be interpreted and construed in treated as a manner that establishes an exemption from (or compliance with) the requirements right to receive a series of Code Section 409A. Any terms of separate payments and, accordingly, each installment payment under this Agreement that are undefined or ambiguous shall at all times be interpreted in considered a manner that complies with Code Section 409A separate and distinct payment. Notwithstanding any provision to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrarycontrary in this Agreement, (i) if, on the date of termination, the if Executive is deemed by the Company 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, including the Severance Benefits, upon Separation From Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation” (including as defined in a result of the terms of Offer Letter), 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, and such payments shall not be provided to Executive prior to the deferral earliest of (i) the expiration of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder six (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following 6)-month period measured from the date of termination (or Executive’s Separation From Service with the earliest date as is permitted under Code Section 409A)Company, and (ii) if any other payments the date of money Executive’s death or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax (iii) such earlier date as permitted under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 andwithout the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, for purposes of all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms remaining payments due shall mean separation from service. Each payment made under be paid as otherwise provided in this Agreement or in the applicable agreement. No interest shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsdue on any amounts so deferred.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with Company, on the date of termination, the Executive is a “specified employee” as defined in within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the rules and regulations there under, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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) until the date that is the first business day six months following Executive’s termination of the seventh month following the date of termination employment with Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) 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 Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In 409A of the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax Code, or additional tax under Code Section 409A, then otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent required possible, in a reasonable manner, determined by the Board, that does not cause such an accelerated or additional tax. Any reimbursement provided under this Agreement shall be made no later than December 31 of the calendar year following the calendar year in which the related expense was incurred; provided, however, that in no event will reimbursements in one taxable year affect the amount of reimbursements in any other taxable year, nor shall the right to reimbursement be subject to liquidation or exchange for another benefit. No payment or benefit that is deferred compensation for purposes of Code Section 409A, a 409A and that is due upon Executive’s termination of employment shall not will be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts paid or benefits upon or following a termination of employment provided unless such termination is also a “separation from service” service within the meaning of Code Section 409A and the rules and regulations there under. Company shall consult with Executive in good faith regarding the application of this Section 13(g) to maximize tax efficiency, provided Company does not guarantee to the Code and, for purposes Executive any specific tax consequences relating to entitlement to or receipt of any such provision of payments or benefits pursuant to this Agreement, references and that neither Company nor any of its employees or representatives shall have any liability to a “termination,” “termination of employment” or like terms shall mean separation from serviceExecutive with respect thereto. Each Any cash payment made under this Agreement shall be treated deferred as a separate payment and consequence of this Section 13(g) shall bear interest at the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsprime rate until paid.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under Notwithstanding anything in this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif the Employee is subject to US Federal income tax on any part of the payment of the PSUs and the Award is subject to Section 409A, on then the date PSUs shall be subject to the following provisions of termination, this Section 9. If the Executive Employee is a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement any issuance or payment in respect of the payment PSUs under Section 8 of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date this Agreement above that is on account of the Employee’s separation from service and is scheduled to be paid within six months after such separation from service shall accrue without interest and shall be paid as soon as reasonably practicable after the first business day of the seventh month following beginning after the date of termination (or the earliest date Employee’s separation from service or, if earlier, as is permitted under Code soon as reasonably practicable following the Employee’s death. During such delayed distribution period, the Employee shall continue to be credited with cash amounts equal to dividends on Common Stock for the applicable Award pursuant to Section 409A)4 of this Agreement, and (ii) 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 Code Section 409A, such payments or other benefits amounts shall accrue without interest and shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. paid in a lump sum at the time specified in the preceding sentence. In the event of a “Change in Control” under section 6(b) of the Plan that payments under this Agreement are deferred pursuant to this Section is not also a “change in order to prevent any accelerated tax control event” within the meaning of Treas. Reg. §1.409A-3(i)(5)(i), the PSUs shall vest as set forth in section 6(a) of the Plan, but shall not be paid upon such Change in Control or additional tax under Code Section 409Atermination of employment as provided by section 6(a) of the Plan, then such payments and shall instead be paid at the time specified under the PSUs would otherwise be settled at the end of the applicable performance period in accordance with Section 8 of this Section without any interest thereonAgreement. Notwithstanding anything References to the contrary herein, to the extent required by Code Section 409A, a termination of employment and separation from service shall not be deemed interpreted to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following mean a termination of employment unless such termination is also a “separation from service” , within the meaning of Section 409A 409A, with the Company and all of the Code and, for its affiliates treated as a single employer under Section 409A. This Agreement shall be construed in a manner consistent with Section 409A. For purposes of any such provision Section 409A, the payment of this Agreement, references to a “termination,” “termination dividend equivalents under Section 4 of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated construed as a separate payment earnings and the right to a series time and form of installment payments under this Agreement is to payment of such dividend equivalents shall be treated as a right to a series separately from the time and form of separate paymentspayment of the underlying PSUs.

Compliance with Code Section 409A. The intent A. It is the intention of Hxxxxx and the parties is Executive that payments the payments, benefits and benefits under rights to which the Executive could be entitled pursuant to this Agreement comply with Code Section 409A, the Treasury regulations and other guidance promulgated or are exempt from issued thereunder (collectively for purposes of this paragraph 16, “Section 409A”), to the extent that the requirements of Section 409A are applicable thereto, and after application of all available exemptions, including but not limited to, the Code “short-term deferral rule” and “involuntary separation pay plan exception” and the provisions of this Agreement shall be interpreted and construed in a manner consistent with that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereonintention. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes of If any provision of this Agreement providing for (or of any award of compensation, including equity compensation or benefits) would cause the payment Executive to incur any additional tax or interest under Section 409A, Hxxxxx shall, upon the specific request of amounts the Executive, use its reasonable business efforts to in good faith reform such provision to comply with Section 409A; provided, that to the maximum extent practicable, the original intent and economic benefit to the Executive and Hxxxxx of the applicable provision shall be maintained, but Hxxxxx shall have no obligation to make any changes that could create any additional economic cost or benefits upon or following a termination loss of employment unless such termination is also a “separation benefit to Hxxxxx. Hxxxxx shall not have any liability to the Executive with respect to tax obligations that result from service” within the meaning application of Section 409A and makes no representation with respect to the tax treatment of the Code and, for purposes of any such provision of payments and/or benefits provided under this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation . Any provision required for compliance with Section 409A that is omitted from service. Each payment made under this Agreement shall be treated as incorporated herein by reference and shall apply retroactively, if necessary, and be deemed a separate payment and the right to a series part of installment payments under this Agreement is to be treated the same extent as a right to a series of separate paymentsthough expressly set forth herein.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits Any payment under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement 6 shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) subject to the requirements of Code Section 409A. Any terms provisions of this Agreement that are undefined or ambiguous shall be interpreted in Section 6(k) (except for a manner that complies with Code payment pursuant to Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i6(e) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A’s death), . If and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a any payment or benefit required to be paid under this agreement on account of termination of Executive’s 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 made only after Executive incurs a “separation from service” within the meaning of Code Section 409A 409A. If Executive is a “Specified Employee” of the Code and, Company for purposes of Code Section 409A at the time of a payment event set forth in Section 6 and if no exception from Code Section 409A applies in whole or in part, then the severance or other payments pursuant to Section 6 that are subject to Section 409A shall be made to Executive by the Company or commence on the later of the date otherwise provided therein or the first day of the seventh month following the date of the Executive’s separation from service (the “409A Payment Date”). Should this paragraph 6(k) result in a delay of payments to Executive, the Company shall begin to make such payments as described in this paragraph 6(k), provided that any such provision amounts that would have been payable earlier but for the application of this Agreementparagraph 6(k), references shall be paid in lump-sum on the 409A Payment Date along with accrued interest at the rate of interest announced by Bank of America, Arizona from time to a “termination,” “termination of employment” or like terms shall mean separation time as its prime rate from service. Each payment the date that payments to you should have been made under this Agreement. For purposes of this provision, the term Specified Employee shall have the meaning set forth in Code Section 409A(a)(2)(B)(i) or any successor provision and the treasury regulations and rulings issued thereunder. It is the intention of both the Company and Executive that the benefits and rights to which Executive could be entitled pursuant to this Agreement comply with Code Section 409A, to the extent that the requirements of Code Section 409A are applicable thereto, and the provisions of this Agreement shall be treated as construed in a separate payment manner consistent with that intention. If Executive or the Company believes, at any time, that any such benefit or right that is subject to Code Section 409A does not comply, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such benefits and rights such that they comply with Code Section 409A (with the most limited possible economic effect on Executive and on the Company). Any reimbursement under this Agreement, to the extent it constitutes a deferral of compensation under Code Section 409A, shall meet the following requirements: (i) 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, (ii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (iii) the right to a series of installment payments under this Agreement is to reimbursement or in-kind benefits hereunder may not be treated as a right to a series of separate paymentsliquidated or exchanged for any other benefit.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, Executive’s termination of services with the Company Executive is a “specified employee” as defined in Section 409A of the Internal Revenue Code (the “Code”), and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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) until the first business day to occur following the date that is six (6) months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A409A of the Code), ; and (ii) 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 Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, 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. In the event that payments under this Agreement are deferred pursuant to this Section 10 in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section 10 without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 10; provided that neither the Corporation nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, to the extent required by 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 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 “resignation,” “termination,” “termination of employment” or like terms shall mean separation from service. Each For purposes of Section 409A of the Code, each payment made under this Agreement shall be treated designated as a “separate payment and payment” within the right to a series meaning of installment payments under this Agreement is to be treated as a right to a series the Section 409A of separate paymentsthe Code.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits Any payment under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement 9 shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) subject to the requirements of Code Section 409A. Any terms provisions of this Agreement that are undefined or ambiguous shall be interpreted in Section 9(e) (except for a manner that complies with Code payment pursuant to death under Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the 9(b)). If Executive is a “specified employeeSpecified Employee” as defined in of the Company for purposes of Code Section 409A at the time of the Codea payment event set forth in Sections 8(b), (d) or (f) and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under if no exception from Code Section 409A409A applies in whole or in part, then the Company will defer severance or other payments pursuant to this Section 9 (or the commencement portion of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided with respect to which no exemption from Code Section 409A applies) shall be made to Executive by the Executive) until the date that is Company on the first business day of the seventh month following the date of termination the Executive’s Separation from Service (or the earliest date as is permitted under Code Section 409A“409A Payment Date”), and (iishould this Section 9(e) if result in a delay of payments to Executive, the Company shall begin to make such payments as described in this Section 9, provided that any other payments of money or other benefits due to the Executive hereunder could cause amounts that would have been payable earlier but for the application of an accelerated or additional tax under Code this Section 409A9, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In paid in lump-sum on the event 409A Payment Date along with accrued interest at the rate of interest announced by the Company’s primary bank from time to time as its prime rate from the date that payments to you should have been made under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then Agreement. The balance of such severance payments shall be payable in accordance with regular payroll timing in effect on the date of Executive’s Separation from Service and the COBRA premiums shall be paid at monthly. For purposes of this provision, the time specified under this Section without any interest thereon. Notwithstanding anything to term Specified Employee shall have the contrary herein, to the extent required by meaning set forth in Code Section 409A409A(a)(2)(B)(i), a termination of employment shall not be deemed to have occurred for purposes of or any successor 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentstreasury regulations and rulings issued hereunder.

Compliance with Code Section 409A. The intent It is intended that all of the parties is that payments and benefits payable under this Agreement comply with or are exempt satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right to receive any installment payments under this Agreement (whether Severance Benefits, expense reimbursements or otherwise) shall be interpreted and construed in treated as a manner that establishes an exemption from (or compliance with) the requirements right to receive a series of Code Section 409A. Any terms of separate payments and, accordingly, each installment payment under this Agreement that are undefined or ambiguous shall at all times be interpreted in considered a manner that complies with Code Section 409A separate and distinct payment. Notwithstanding any provision to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrarycontrary in this Agreement, (i) if, on the date of termination, the if Executive is deemed by the Company 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, including the Severance Benefits, upon Separation From Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation” (including as defined in a result of the terms of Offer Letter), 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, and such payments shall not be provided to Executive prior to the deferral earliest of (i) the expiration of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder six (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following 6)-month period measured from the date of termination (or Executive’s Separation From Service with the earliest date as is permitted under Code Section 409A)Company, and (ii) if any other payments the date of money Executive’s death or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax (iii) such earlier date as permitted under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 andwithout the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, for purposes of all payments deferred pursuant to this paragraph shall be paid in a lump sum to Executive, and any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms remaining payments due shall mean separation from service. Each payment made under be paid as otherwise provided in this Agreement or in the applicable agreement. No interest shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsdue on any amounts so deferred.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under Notwithstanding anything in this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif the Employee is subject to US Federal income tax on any part of the payment of the RSUs, on and the date Award is subject to Section 409A, then the RSUs shall be subject to the following provisions of termination, this Section 9. If the Executive Employee is a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement any payment of RSUs under Section 8 of this Agreement above that is on account of the payment of any Employee’s separation from service and is scheduled to be paid within six months after such payments or benefits hereunder (separation from service shall accrue without any reduction in such payments or benefits ultimately interest and shall be paid or provided to the Executive) until the date that is as soon as reasonably practicable after the first business day of the seventh month, or thirteenth month following in situations described in Section 3(c) of this Agreement if applicable, beginning after the date of termination (or the earliest date Employee’s separation from service or, if earlier, as is permitted under Code soon as reasonably practicable following the Employee’s death. During such delayed distribution period, the Employee shall continue to receive cash amounts equal to dividends on Common Stock pursuant to Section 409A)4 of this Agreement, and (ii) if any other payments of money or other benefits due such amounts shall be paid to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, Employee as such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. dividends are paid. In the event of a “Change in Control” under section 6(b) of the Plan that payments under this Agreement are deferred pursuant to this Section is not also a “change in order to prevent any accelerated tax or additional tax under Code Section 409Acontrol event” within the meaning of Treas. Reg. §1.409A-3(i)(5)(i), then the RSUs shall vest as set forth in section 6(a) of the Plan, but shall not be paid upon such payments Change in Control as provided by section 6(a) of the Plan, and shall instead be paid at the time specified under the RSUs would otherwise be paid pursuant to this Section without any interest thereonAgreement. Notwithstanding anything References to the contrary herein, to the extent required by Code Section 409A, a termination of employment and separation from service shall not be deemed interpreted to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following mean a termination of employment unless such termination is also a “separation from service” , within the meaning of Section 409A 409A, with the Company and all of the Code and, for its affiliates treated as a single employer under Section 409A. This Agreement shall be construed in a manner consistent with Section 409A. For purposes of any such provision Section 409A, the payment of this Agreement, references to a “termination,” “termination dividend equivalents under Section 4 of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated construed as a separate payment earnings and the right to a series time and form of installment payments under this Agreement is to payment of such dividend equivalents shall be treated as a right to a series separately from the time and form of separate paymentspayment of the underlying RSUs.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. If for any reason, such as imprecision in drafting, any provision of this Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, such provision shall be considered ambiguous as to its exemption from (or compliance with) Code Section 409A and shall be interpreted in a manner consistent with such intent. Notwithstanding anything herein to the contrary, (i) if, on the date Date of terminationTermination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date Date of termination Termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that preserves the economic benefit and original intent thereof but does not cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a “deferral of compensation” within the meaning of Code Section 409A (1) the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive in any other calendar year, (2) the reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (3) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. 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 (the “Code”) and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive Employee is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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 ExecutiveEmployee) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive Employee hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and shall operate so that the payments and benefits set forth herein either shall be exempt from the requirements of Code Section 409A or shall comply with the requirements of such provision; provided, however, that in no event shall the Company be liable to the Executive for or with respect to any taxes, penalties or interest which may be imposed upon the Executive pursuant to Code Section 409A. For purposes of this Agreement, the terms “termination,” “termination of employment” and variations thereof shall mean a “separation from service” as defined in Treasury Regulation Section 1.409A-1(h) (i“Separation From Service”). To the extent that any Severance payment constitutes a “deferral of compensation” subject to Code Section 409A (a “409A Payment”), then, (A) ifin the event that a termination of Executive’s employment does not constitute a Separation From Service, such 409A Payment shall begin at such time as the Executive has otherwise experienced such a Separation from Service, and the date of such Separation from Service shall be deemed to be his Termination Date for purposes of Section 4(a) hereof, and (B) if on the date of terminationthe Executive’s Separation from Service, the Executive is a “specified employee” of a public company, as such term is defined in Treasury Regulation Section 1.409A-l(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Executive until the earlier of (i) six (6) months and one day after the Executive’s Separation from Service; or (ii) the date of his death, and shall be paid without adjustment for the delay in payment. The Executive hereby acknowledges that he has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A of and applicable state tax law. The Executive hereby agrees to bear the Code, and the deferral of the commencement entire risk of any payments or benefits otherwise payable hereunder as a result of such termination of employment adverse federal and state tax consequences and penalty taxes in the event any payment pursuant to this Agreement is necessary in order deemed to prevent any accelerated or additional tax under be subject to Code Section 409A, then and that no representations have been made to the Company will defer Executive relating to the commencement of the payment tax treatment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided payment pursuant to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted this Agreement under Code Section 409A), 409A and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes corresponding provisions 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsapplicable state income tax laws.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, Executive’s termination of employment with the Company Executive is a “specified employee” as defined in Section 409A of the Code, Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) 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 Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, 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. In the event that payments under this Agreement are deferred pursuant to this Section 7(i) in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section without 7(i) (together with interest for any interest thereonadditional deferral period resulting from this Section 7(i) at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the date of termination). The Company shall consult with Executive in good faith regarding the implementation of this Section 7(i). For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation Separation from serviceService” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean separation Separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsService.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments and benefits under this Agreement intended to comply with or are exempt from Section 409A of the Code and this Agreement shall will be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. so interpreted. Notwithstanding anything herein to the contrary, (i) if, on at the date time of terminationEmployee’s termination of employment with the Company, the Executive Employee is a “specified employee” as defined in Section 409A of the Code, and if the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent the imposition of any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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 ExecutiveEmployee) until the date that is the first business day of the seventh month six months following the date of termination Employee’s Termination Date (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) 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 of the Code, the parties agree to restructure the payments or benefits to comply with Section 409A of the Code Section 409A, in a manner which does not diminish the value of such payments or other and benefits shall be deferred if deferral will make such to the Employee. Each payment or other benefits compliant under Code Section 409A. In the event that payments made under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also designated as a “separation from serviceseparate payment” within the meaning of Section 409A of the Code andCode. To the extent any reimbursements of in-kind benefits due to the Employee under this Agreement constitute “deferred compensation” under Section 409A of the Code, for purposes any such reimbursements of in-kind benefits shall be paid to the Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). If, after payment of any such provision of amounts or benefits under this Agreement, references to a “termination,” “termination the Internal Revenue Service determines that the payment of employment” such amounts or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment benefits does not comply with Section 409A of the Code, and the right Internal Revenue Service imposes upon the Employee accelerated or additional tax, penalties, interest or other charges under Section 409A of the Code, the Company shall pay to a series the Employee before the due date that the Employee is required to make payment to the Internal Revenue Service, an amount such that, after payment of installment payments under this Agreement is all taxes, penalties, or interest in respect thereof, the Employee will have remaining the full amount necessary to be treated as a right satisfy the Employee’s obligation to a series of separate paymentspay any accelerated or additional tax, penalties, interest and charges so imposed by the Internal Revenue Service.

Compliance with Code Section 409A. The intent of the parties is that payments and With respect to reimbursements or in-kind benefits provided under this Agreement or under any other Company Arrangement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement or under any other Company Arrangement, (b) any reimbursement of provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement or of any other Company Arrangement) shall be made not later than December 31st of the year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement or of any other Company Arrangement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that any amounts payable under this Agreement, any Employee Plan or any other Company Arrangement, and any exercise of the Company’s and the Executive’s authority or discretion hereunder, shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall the Treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of imposed under Code Section 409A. Any terms In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Code Section 409A, the Parties agree to amend this Agreement that are undefined or ambiguous shall be interpreted in order to bring this Agreement into compliance with Code Section 409A; and thereafter to interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the deferral U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding anything in this Agreement or elsewhere to the contrary, and unless the Executive otherwise agrees in a signed writing executed in connection with the termination of his employment under this Agreement, the Executive shall have no duties or responsibilities after the Termination Date that are inconsistent with his having had a Separation from Service on the Termination Date. If the Executive agrees, in a signed writing that is executed in connection with the termination of his employment under this Agreement, to undertake duties and responsibilities that will result in his not incurring a Separation from Service on the Termination Date, all references to the Termination Date herein for the purposes of determining the commencement of any severance payments or and benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be constitute deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” compensation within the meaning of Section 409A shall mean the date Executive incurs a Separation from Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with this Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on him under or as a result of Section 409A of the Code and, for purposes of any such provision in connection with payments and benefits made in accordance with the terms of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under Notwithstanding anything in this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif the Employee is subject to US Federal income tax on any part of the payment of the RSUs and the Award is subject to Section 409A, on then the date RSUs shall be subject to the following provisions of termination, this Section 9. If the Executive Employee is a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement any payment of RSUs under Section 8 of this Agreement above that is on account of the payment of any Employee’s separation from service and is scheduled to be paid within six months after such payments or benefits hereunder (separation from service shall accrue without any reduction in such payments or benefits ultimately interest and shall be paid or provided to the Executive) until the date that is as soon as reasonably practicable after the first business day of the seventh month following beginning after the date of termination (or the earliest date Employee’s separation from service or, if earlier, as is permitted under Code soon as reasonably practicable following the Employee’s death. During such delayed distribution period, the Employee shall continue to receive cash amounts equal to dividends on Common Stock pursuant to Section 409A)4 of this Agreement, and (ii) if any other payments of money or other benefits due such amounts shall be paid to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, Employee as such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. dividends are paid. In the event of a “Change in Control” under section 6(b) of the Plan that payments under this Agreement are deferred pursuant to this Section is not also a “change in order to prevent any accelerated tax or additional tax under Code Section 409Acontrol event” within the meaning of Treas. Reg. §1.409A-3(i)(5)(i), then the RSUs shall vest as set forth in section 6(a) of the Plan, but shall not be paid upon such payments Change in Control as provided by section 6(a) of the Plan, and shall instead be paid at the time specified under the RSUs would otherwise be paid pursuant to this Section without any interest thereonAgreement. Notwithstanding anything References to the contrary herein, to the extent required by Code Section 409A, a termination of employment and separation from service shall not be deemed interpreted to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following mean a termination of employment unless such termination is also a “separation from service” , within the meaning of Section 409A 409A, with the Company and all of the Code and, for its Affiliates treated as a single employer under Section 409A. This Agreement shall be construed in a manner consistent with Section 409A. For purposes of any such provision Section 409A, the payment of this Agreement, references to a “termination,” “termination dividend equivalents under Section 4 of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated construed as a separate payment earnings and the right to a series time and form of installment payments under this Agreement is to payment of such dividend equivalents shall be treated as a right to a series separately from the time and form of separate paymentspayment of the underlying RSUs.

Compliance with Code Section 409A. The intent With respect to reimbursements or in-kind benefits provided under this Agreement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement, (b) any reimbursement or provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement) shall be made not later than December 31st of the parties year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that payments and benefits any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with or are exempt from the provisions of Section 409A of the Code and the treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be imposed under Section 409A of the Code. In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Section 409A of the Code, the parties agree to amend this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of order to bring this Agreement that are undefined or ambiguous shall be interpreted into compliance with Section 409A of the Code; and thereafter interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the deferral of the commencement of Executive shall be responsible for any payments taxes, penalties and interest imposed on him under or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 in connection with the Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, your termination of employment with the Executive is Company you are a “specified employee” as defined in Section 409A of the Code, Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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 Executiveyou) until the date that is the first business day six months following your Date of the seventh month following the date of termination Termination (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) if any other payments of money or other benefits due to the Executive you hereunder could cause the application of an accelerated or additional tax under Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, 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. In the event that payments under this Agreement are deferred pursuant to this Section 14 in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section without 14 (together with interest for any interest thereonadditional deferral period resulting from this Section 14 at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the date of termination). The Company shall consult with you in good faith regarding the implementation of this Section 14. For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless until such termination is also a “separation Separation from serviceService” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “resignation,” “termination,” “termination of employment” or like terms shall mean separation Separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsService.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under Notwithstanding anything in this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) ifif the Employee is subject to U.S. Federal income tax on any part of the payment of the RSUs and the Award is subject to Section 409A, on then the date RSUs shall be subject to the following provisions of termination, this Section 9. If the Executive Employee is a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement any payment of RSUs under Section 8 of this Agreement above that is on account of the payment of any Employee’s separation from service and is scheduled to be paid within six months after such payments or benefits hereunder (separation from service shall accrue without any reduction in such payments or benefits ultimately interest and shall be paid or provided to the Executive) until the date that is as soon as reasonably practicable after the first business day of the seventh month following beginning after the date of termination (or the earliest date Employee’s separation from service or, if earlier, as is permitted under Code soon as reasonably practicable following the Employee’s death. During such delayed distribution period, the Employee shall continue to receive cash amounts equal to dividends on Common Stock pursuant to Section 409A)4of this Agreement, and (ii) if any other payments of money or other benefits due such amounts shall be paid to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, Employee as such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. dividends are paid. In the event of a “Change in Control” under section 6(b) of the Plan that payments under this Agreement are deferred pursuant to this Section is not also a “change in order to prevent any accelerated tax or additional tax under Code Section 409Acontrol event” within the meaning of Treas. Reg. §1.409A-3(i)(5)(i), then the RSUs shall vest as set forth in section 6(a) of the Plan, but shall not be paid upon such payments Change in Control as provided by section 6(a) of the Plan, and shall instead be paid at the time specified under the RSUs would otherwise be paid pursuant to this Section without any interest thereonAgreement. Notwithstanding anything References to the contrary herein, to the extent required by Code Section 409A, a termination of employment and separation from service shall not be deemed interpreted to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following mean a termination of employment unless such termination is also a “separation from service” , within the meaning of Section 409A 409A, with the Company and all of the Code and, for its Affiliates treated as a single employer under Section 409A. This Agreement shall be construed in a manner consistent with Section 409A. For purposes of any such provision Section 409A, the payment of this Agreement, references to a “termination,” “termination dividend equivalents under Section 4 of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated construed as a separate payment earnings and the right to a series time and form of installment payments under this Agreement is to payment of such dividend equivalents shall be treated as a right to a series separately from the time and form of separate paymentspayment of the underlying RSUs.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and Code, as amended (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with BankUnited, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company BankUnited will defer 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) until the date that is the first business day six months following Executive’s termination of the seventh month following the date of termination employment with BankUnited (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the BankUnited Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with BankUnited for purposes of any provision of this Agreement providing for the and no payment of amounts or benefits upon or following a termination of employment unless such termination is also shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from BankUnited within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitute deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by BankUnited no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. BankUnited shall consult with Executive in good faith regarding the implementation of the provisions of this Section 12(g); provided that neither BankUnited nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and shall operate so that the payments and benefits set forth herein either shall be exempt from the requirements of Code Section 409A or shall comply with the requirements of such provision; provided, however, that in no event shall the Company be liable to the Executive for or with respect to any taxes, penalties or interest which may be imposed upon the Executive pursuant to Code Section 409A. For purposes of this Agreement, the terms “termination,” “termination of employment” and variations thereof shall mean a “separation from service” as defined in Treasury Regulation Section 1.409A-1(h) (i“Separation From Service”). To the extent that any Severance payment constitutes a “deferral of compensation” subject to Code Section 409A (a “409A Payment”), then, (A) ifin the event that a termination of Executive’s employment does not constitute a Separation From Service, such 409A Payment shall begin at such time as the Executive has otherwise experienced such a Separation from Service, and the date of such Separation from Service shall be deemed to be her Termination Date for purposes of Section 4(a) hereof, and (B) if on the date of terminationthe Executive’s Separation from Service, the Executive is a “specified employee” of a public company, as such term is defined in Treasury Regulation Section 1.409A-l(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Executive until the earlier of (i) six (6) months and one day after the Executive’s Separation from Service; or (ii) the date of her death, and shall be paid without adjustment for the delay in payment. The Executive hereby acknowledges that she has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A of and applicable state tax law. The Executive hereby agrees to bear the Code, and the deferral of the commencement entire risk of any payments or benefits otherwise payable hereunder as a result of such termination of employment adverse federal and state tax consequences and penalty taxes in the event any payment pursuant to this Agreement is necessary in order deemed to prevent any accelerated or additional tax under be subject to Code Section 409A, then and that no representations have been made to the Company will defer Executive relating to the commencement of the payment tax treatment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided payment pursuant to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted this Agreement under Code Section 409A), 409A and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes corresponding provisions 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsapplicable state income tax laws.

Compliance with Code Section 409A. The intent of the parties It is intended that payments compensation paid and benefits under delivered to Executive pursuant to this Agreement comply with or are otherwise shall be either paid in compliance with, or exempt from from, Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (collectively, “Section 409A”) so as not to subject Executive to payment of interest or any tax under Section 409A, and this Agreement shall be construed, interpreted and construed administered accordingly. In the event this Agreement or any compensation paid or benefits delivered to Executive hereunder or otherwise is deemed to be subject to Section 409A, the Company shall adopt such conforming amendments as the Company deems necessary, in a manner that establishes an exemption from (or compliance with) its sole and absolute discretion, to comply with Section 409A and avoid the requirements imposition of Code taxes under Section 409A. Any However, in no event whatsoever shall the Company be liable for any additional tax, interest or penalties that may be imposed on Executive by Section 409A or for any damages for failing to comply with Section 409A, except to the extent the Company refuses to amend the terms of this Agreement that are undefined or ambiguous as reasonably required to comply with 409A after written notice from Executive. Each payment to Executive made pursuant to this Agreement shall be interpreted considered a separate payment and not one of a series of payments for purposes of Section 409A. If, upon Executive’s separation from service within the meaning of Section 409A, Executive is then a “specified employee” (as defined in a manner that complies with Code Section 409A 409A), then solely to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to 409A and avoid the contrary, (i) if, on the date imposition of terminationtaxes under Section 409A, the Executive is a Company shall defer payment of “specified employeenonqualified deferred compensation” as defined in subject to Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise that is payable hereunder as a result of and within six (6) months following such termination separation from service under this Agreement until the earlier of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then (i) ten (10) days after the Company will defer the commencement receives written confirmation of the payment of any such payments Executive’s death or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executiveii) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 Executive’s separation from service. Each payment made under this Agreement Any such delayed payments shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsmade without interest.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and Code, as amended (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with NewBank, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company NewBank will defer 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) until the date that is the first business day six months following Executive’s termination of the seventh month following the date of termination employment with NewBank (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the NewBank Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with NewBank for purposes of any provision of this Agreement providing for the and no payment of amounts or benefits upon or following a termination of employment unless such termination is also shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from NewBank within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitute deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of any such provision of this Agreement, references Section 409A. To the extent required to a “termination,” “termination of employment” avoid an accelerated or like terms shall mean separation from service. Each payment made additional tax under Section 409A amounts reimbursable to Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by NewBank no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. NewBank shall consult with Executive in good faith regarding the implementation of the provisions of this Section 12(g); provided that neither NewBank nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent With respect to reimbursements or in-kind benefits provided under this Agreement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement, (b) any reimbursement or provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement) shall be made not later than December 31st of the parties year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is intended that payments and benefits any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with or are exempt from the provisions of Section 409A of the Code and the treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be imposed under Section 409A of the Code. In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Code Section 409A, the parties agree to amend this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or order to bring this Agreement into compliance with) the requirements of with Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted 409A; and thereafter interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the deferral of the commencement of Executive shall be responsible for any payments taxes, penalties and interest imposed on him under or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 andin connection with the Agreement. Xxxxxx Employment Agreement – April 29, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.2009

Compliance with Code Section 409A. The intent of the parties This offer letter is that payments and benefits under this Agreement intended to comply with or are exempt from Section 409A of the Internal Revenue Code (“Section 409A”) or an exemption thereunder and this Agreement shall be interpreted construed and construed administered in a manner that establishes an exemption from (or compliance with) the requirements of Code accordance with Section 409A. Any terms Notwithstanding any other provision of this Agreement that are undefined or ambiguous shall offer letter, payments provided under this offer letter may only be interpreted made upon an event and in a manner that complies with Code Section 409A or an applicable exemption. Any payments under this offer letter 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 maximum extent necessary possible. Any payments to comply with Code be made under this offer letter upon a termination of employment shall only be made upon a “separation from service” under Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of terminationforegoing, the Executive Company makes no representations that the payments and benefits provided under this offer letter comply with Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by you on account of non-compliance with Section 409A. Notwithstanding any other provision of this offer letter, if any payment or benefit provided to you in connection with termination of employment is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A and you are determined to be a “specified employee” as defined in Section 409A 409A(a)(2)(b)(i), then such payment or benefit shall not be paid until the first payroll date to occur following the six-month anniversary of your termination date (the Code“Specified Employee Payment Date”) or, and if earlier, on the deferral date of the commencement your death. The aggregate of any payments or benefits that would otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then have been paid before the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits Specified Employee Payment Date shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In paid to you in a lump sum on the event that payments under this Agreement are deferred pursuant to this Section in order to prevent Specified Employee Payment Date and thereafter, any accelerated tax or additional tax under Code Section 409A, then such remaining payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsdelay in accordance with their original schedule.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits Any payment under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement 6 shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) subject to the requirements of Code Section 409A. Any terms provisions of this Agreement that are undefined or ambiguous shall be interpreted in Section 6(k) (except for a manner that complies with Code payment pursuant to Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i6(e) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A’s death), . If and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a any payment or benefit required to be paid under this agreement on account of termination of Executive’s 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 made only after Executive incurs a “separation from service” within the meaning of Code Section 409A 409A. If Executive is a “Specified Employee” of the Code and, Company for purposes of Code Section 409A at the time of a payment event set forth in Section 6 and if no exception from Code Section 409A applies in whole or in part, then the severance or other payments pursuant to Section 6 that are subject to Section 409A shall be made to Executive by the Company or commence on the later of the date otherwise provided therein or the first day of the seventh month following the date of the Executive’s separation from service (the “409A Payment Date”). Should this paragraph 6(k) result in a delay of payments to Executive, the Company shall begin to make such payments as described in this paragraph 6(k), provided that any such provision amounts that would have been payable earlier but for the application of this Agreementparagraph 6(k), references shall be paid in lump-sum on the 409A Payment Date along with accrued interest at the rate of interest announced by Bank of America, Arizona from time to a “termination,” “termination of employment” or like terms shall mean separation time as its prime rate from service. Each payment the date that payments to you should have been made under this Agreement. For purposes of this provision, the term Specified Employee shall have the meaning set forth in Code Section 409A(a)(2)(B)(i) or any successor provision and the treasury regulations and rulings issued thereunder. It is the intention of both the Company and Executive that the benefits and rights to which Executive could be entitled pursuant to this Agreement comply with Code Section 409A, to the extent that the requirements of Code Section 409A are applicable thereto, and the provisions of this Agreement shall be treated as construed in a separate payment manner consistent with that intention. If Executive or the Company believes, at any time, that any such benefit or right that is subject to Code Section 409A does not comply, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such benefits and rights such that they comply with Code Section 409A (with the most limited possible economic effect on Executive and on the Company). Any reimbursement under this Agreement, to the extent it constitutes a deferral of compensation under Code Section 409A, shall meet the following 11 requirements: (i) 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, (ii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (iii) the right to a series of installment payments under this Agreement is to reimbursement or in-kind benefits hereunder may not be treated as a right to a series of separate paymentsliquidated or exchanged for any other benefit.

Compliance with Code Section 409A. The intent With respect to reimbursements or in-kind benefits provided under this Agreement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement, (b) any reimbursement or provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement) shall be made not later than December 31st of the parties year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits provided, by the Company in one year affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Section 409A of the Code. It is Xxxxx Employment Agreement 19 intended that payments and benefits any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with or are exempt from the provisions of Section 409A of the Code and this Agreement shall the treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of imposed under Code Section 409A. Any terms In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Code Section 409A, the parties agree to amend this Agreement that are undefined or ambiguous shall be interpreted in order to bring this Agreement into compliance with Code Section 409A; and thereafter interpret its provisions in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the deferral of the commencement of Executive shall be responsible for any payments taxes, penalties and interest imposed on him under or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 in connection with the Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent of It is intended that the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or Agreement, including any ambiguous shall terms, be interpreted in a manner consistent with Section 409A. It is also intended that, for all purposes, “termination of employment” (or similar terms) as used herein shall mean “separation from service” (within the meaning provided by Treasury Regulation Section 1.409A-1(h)) in accordance with Treasury Regulation Section 1.409A-3(a)(1). Any provision that complies with Code would cause this Agreement, or any payment hereunder, to fail to satisfy Section 409A shall have no force or effect until amended to comply with Section 409A, which amendment may be retroactive to the extent necessary to comply with Code permitted by Section 409A. The direct payment or reimbursement of expenses permitted under this Agreement or otherwise shall be made no later than the last day of Employee’s taxable year following the taxable year in which such expense was incurred. Notwithstanding anything herein to the contrary, in no event shall Corporation be liable to Employee for, or with respect to, any taxes, penalties, or interest which may be imposed upon you pursuant to Section 409A. If it is determined that (ia) if, on the date of termination, the Executive Employee is a “specified employee,” as defined in Section 409A of 409A(a)(2)(B)(i) and the Coderegulations and other guidance promulgated thereunder, and any elections made by Employee in accordance therewith, and (b) such payments constitute a distribution of deferred compensation (within the deferral meaning of Treasury Regulation Section 1.409A-1(b)) upon separation from service (within the commencement meaning of Treasury Regulation Section 1.409A-1(h)), after taking into account all available exemptions, then notwithstanding the timing of payment provided in any payments other Paragraph of this Agreement, no payment, distribution, or benefits benefit under this Agreement that constitutes a distribution of deferred compensation and that would otherwise be payable hereunder as a result of such during the six (6) month period after Employee’s termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409Aemployment, then the Company will defer the commencement of the payment of be made during such six (6) month period, and any such payments payment, distribution or benefits hereunder (without any reduction in such payments or benefits ultimately benefit will instead be paid or provided to the Executive) until the date that is on the first business day of after such six (6) month period.” Except as otherwise expressly amended by this Amendment, the seventh month following the date of termination (or the earliest date as Agreement is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due shall continue to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. in full force and effect in accordance with its terms. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision inconsistency between the provisions of this Agreement providing for Amendment and those in the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within Agreement, the meaning of Section 409A of the Code and, for purposes of any such provision terms of this Agreement, references to a “termination,” “termination of employment” or like terms Amendment shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentscontrol.

Compliance with Code Section 409A. The intent of This Section 28 applies only to the parties extent that the Participant is a U.S. taxpayer. It is intended that payments and benefits any amounts payable under this Agreement shall either be exempt from or comply with or are exempt from Code Section 409A (including the Treasury regulations and other published guidance relating thereto) (“Code Section 409A”) so as not to subject the Participant to payment of the any additional tax, penalty or interest imposed under Code and Section 409A. The provisions of this Agreement shall be construed and interpreted and construed in a manner that establishes an exemption from (to avoid the imputation of any such additional tax, penalty or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with interest under Code Section 409A yet preserve (to the nearest extent necessary to comply with Code Section 409A. Notwithstanding anything herein reasonably possible) the intended benefit payable to the contraryParticipant. This Agreement may be amended at any time, (i) if, on without the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement consent of any payments or benefits otherwise payable hereunder as a result party, to avoid the application of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then but the Company will defer the commencement of the payment of shall not be under any obligation to make any such payments or benefits hereunder (without any reduction amendment. Nothing in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant shall provide a basis for any person to this Section in order to prevent take action against the Company or any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required affiliate based on matters covered by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes including the tax treatment of any provision amount paid or Option granted under the Agreement, and neither the Company nor any of this Agreement providing its Subsidiaries or affiliates shall under any circumstances have any liability to any Participant or his estate or any other party for the payment of any taxes, penalties or interest due on amounts paid 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 payable under this Agreement, references to a “termination,” “termination including taxes, penalties or interest imposed under Code Section 409A. * * * * By the Participant’s electronic acceptance of employment” or like the Agreement and participation in the Program, the Participant agrees that this Option is granted under and governed by the terms shall mean separation from service. Each payment made under and conditions of the Program and this Agreement shall be treated as a separate payment Agreement, including the Appendices and the right Statement. NON-U.S. COUNTRIES ADDITIONAL TERMS APPENDIX ADDITIONAL TERMS AND CONDITIONS OF THE XXXXXXX LIFESCIENCES CORPORATION GLOBAL NON-QUALIFIED STOCK OPTION AGREEMENT Terms and Conditions This Non-U.S. Countries Additional Terms Appendix includes additional terms and conditions that govern the Option granted to a series the Participant under the Program if the Participant resides in one of installment payments under the non-U.S. countries listed below. Certain capitalized terms used but not defined in this Agreement is to be treated as a right to a series of separate paymentsNon-U.S. Countries Additional Terms Appendix have the meanings set forth in the Program and/or the Agreement.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and operated so that the payment of the benefits set forth herein either shall either be exempt from the requirements of Section 409A of the Code or shall comply with the requirements of such provision; provided however that in no event shall the Company be liable to the Executive for or with respect to any taxes, penalties or interest which may be imposed upon the Executive pursuant to Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (id)(i), (d)(iii) ifor (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on the date of terminationthe Executive’s “separation from service,” as such term is defined in Treas. Reg. Section 1.409A-1(h)(1), from the Company (his “Separation from Service”), the Executive is a “specified employee,” as such term is defined in Treas. Reg. Section 1.409-1(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Executive earlier than the earlier of (i) six (6) months after the Executive’s Separation from Service; or (ii) the date of his death. The 409A Payments under this Agreement that would otherwise be made during such period shall be aggregated and paid in one lump sum, without interest, on the first business day following the end of the Codesix (6) month period or following the date of the Executive’s death, whichever is earlier, and the deferral balance of the commencement 409A Payments, if any, shall be paid in accordance with the applicable payment schedule provided in this Section 4. The Executive hereby acknowledges that he has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A and applicable State tax law. Executive hereby agrees to bear the entire risk of any payments or benefits otherwise payable hereunder as a result of such termination of employment adverse federal and State tax consequences and penalty taxes in the event any payment pursuant to this Agreement is necessary in order deemed to prevent any accelerated or additional tax under be subject to Code Section 409A, then and that no representations have been made to the Company will defer Executive relating to the commencement of the payment tax treatment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided payment pursuant to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted this Agreement under Code Section 409A), 409A and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes corresponding provisions 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsapplicable State income tax laws.

Compliance with Code Section 409A. The intent of the parties This Agreement is that payments intended, and benefits under this Agreement shall be construed and interpreted, to comply with or are exempt from Section 409A of the Internal Revenue Code and of 1986, as amended (the “Code”) or an exemption therefrom. For purposes of Code Section 409A, each payment of compensation under this Agreement shall be interpreted and construed in treated as a manner that establishes separate payment of compensation. Any amounts payable solely on account of an exemption involuntary termination of employment shall be excludible from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined 409A, either as separation pay or ambiguous shall be interpreted in a manner that complies with Code Section 409A as short-term deferrals to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein maximum possible extent. Any reference to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 Employee’s “termination,” “termination of employment” or like terms “termination of the Term” shall mean the Employee’s “separation from service. Each payment made under this Agreement shall ” as defined in Code Section 409A from the Company and all entities with whom the Company would be treated as a separate single employer for purposes of Code Section 409A. Nothing herein shall be construed as a guarantee of any particular tax treatment to the Employee and the Company shall have no liability to the Employee with respect to any penalties that might be imposed on the Employee by Code Section 409A for any failure of this Agreement to comply with Code Section 409A. In the event that the Employee is a “specified employee” (as described in Code Section 409A), and any payment or benefit payable pursuant to this Agreement constitutes deferred compensation under Code Section 409A, then no such payment or benefit shall be made before the date that is six (6) months after the Employee’s “separation from service” (as described in Code Section 409A) (or, if earlier, the date of the Employee’s death). Any payment or benefit delayed by reason of the prior sentence shall be paid out or provided in a single lump sum at the end of such required delay period in order to catch up to the original payment schedule. Notwithstanding any provision in this Agreement to the contrary, in no event will the Employee directly or indirectly designate the calendar year of payment and any severance payment conditioned on a Release that is deemed to be deferred compensation under Code Section 409A and that could be made in two in more than one taxable year shall be made in the right to a series later taxable year. If the Company shall determine in that any provision of installment payments under this Agreement is does not comply with the requirements of Code Section 409A, the Company shall have the authority, but not the obligation, to unilaterally amend the Agreement to the extent necessary (including retroactively) in order to comply with Code Section 409A; provided that such amendment will, to the maximum extent possible, avoid diminishing the aggregate severance payments payable to the Employee hereunder (even if the timing of such severance payments must be treated as a right altered). The Company shall also have the discretionary authority to a series take such other actions to correct any failures to comply in operation with the requirements of separate payments.Code Section 409A. Such authority shall include the power to adjust the timing or other details relating to the awards and/or payments described in this Agreement if the Company determines that such adjustments are necessary in order to comply with or become exempt from the requirements of Code Section 409A.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and Code, as amended (“Section 409A”) to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Executive’s termination of employment with the Company, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is six months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the NewBank Board that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Executive shall not be deemed considered to have occurred terminated employment with the Company for purposes of any provision of this Agreement providing for the and no payment of amounts or benefits upon or following a termination of employment unless such termination is also shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitute deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made Executive under this Agreement shall be treated as a separate payment paid to Executive on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Executive) during any one year may not effect amounts reimbursable or provided in any subsequent year provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of installment payments under this Agreement is Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. the Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 12(g); provided that neither the Company nor any of its employees or representatives shall have any liability to be treated as a right Executive with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent of To the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and extent applicable, this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies accordance with Code Section 409A to of the extent necessary to comply with Internal Revenue Code Section 409A. of 1986, as amended (the “Code”), and 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 Execution Date. Notwithstanding anything herein any provision of the Agreement to the contrary, (i) if, on if at the date time of termination, the Executive’s termination of employment with the Company the Executive is a “specified employee” as defined in Section 409A Code and related Department of the Code, Treasury guidance and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will may defer 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) until the date that is the first business day of the seventh month six months following the date Executive’s termination of termination employment with the Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) 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 Code Section 409A409A of the Code, the Company may (a) adopt such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything amendments to the contrary hereinAgreement, including amendments with retroactive effect, that the Company determines necessary or appropriate to preserve the extent required intended tax treatment of the benefits provided by Code Section 409A, a termination of employment shall not be deemed the Agreement and/or (b) take such other actions as the Company determines necessary or appropriate to have occurred for purposes of any provision of this Agreement providing for comply with 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 requirements of Section 409A of the Code and, for purposes and related Department of any such provision Treasury guidance. The Company shall consult with the Executive in good faith regarding the implementation of this Agreement, references Section 14; provided that neither the Company nor any of its employees or representatives shall have any liability to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsExecutive with respect thereto.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and operated so that the payment of the benefits set forth herein shall either be exempt from the requirements of Section 409A of the Code or shall comply with the requirements of such provision. To the extent that any amount payable pursuant to Subsections 4(b), (id)(i), (d)(iii) ifor (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on the date of terminationthe Executive’s “separation from service,” as such term is defined in Treas. Reg. Section 1.409A­1(h)(1), from the Company (his “Separation from Service”), the Executive is a “specified employee,” as such term is defined in Treas. Reg. Section 409A of 1.409‑1(i), as determined from time to time by the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409ACompany, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided 409A Payment shall not be made to the Executive earlier than the earlier of (i) six (6) months after the Executive’s Separation from Service; or (ii) until the date of his death. The 409A Payments under this Agreement that is would otherwise be made during such period shall be aggregated and paid in one lump sum, without interest, on the first business day following the end of the seventh six (6) month period or following the date of termination the Executive’s death, whichever is earlier, and the balance of the 409A Payments, if any, shall be paid in accordance with the applicable payment schedule provided in this Section 4. To the extent any 409A Payment is conditioned on the Executive (or the earliest date as is permitted under Code Section 409A)his legal representative) executing a release of claims, and (ii) if any other payments which 409A Payment would be made in a later taxable year of money or other benefits due to the Executive hereunder could cause than the application of an accelerated or additional tax taxable year in which his Separation from Service occurs if such release were executed and delivered and became irrevocable at the last possible date allowed under Code Section 409Athis Agreement, such payments or other benefits shall 409A Payment will be deferred if deferral will make paid no earlier than such payment or other benefits compliant under Code later taxable year. In applying Section 409A. In the event that payments under this Agreement are deferred 409A to compensation paid pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made under this Agreement shall be treated as a separate payment and the any right to a series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments. The Executive hereby acknowledges that he has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A and applicable State tax law, and that the tax laws make the Executive and not the Company responsible for penalties and interest that may be imposed in the event Code Section 409A is violated.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive this Agreement is a “specified employee” as defined in Section 409A of the Code, intended to be interpreted and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of operated so that the payment of any such payments or the benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to set forth herein shall either be exempt from the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning requirements of Section 409A of the Code andor shall comply with the requirements of such provision; provided however that in no event shall the Company be liable to the Executive for or with respect to any taxes, for purposes penalties or interest which may be imposed upon the Executive pursuant to Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii) or (f) constitutes a "deferral of compensation" subject to Section 409A (a "409A Payment"), then, if on the date of the Executive's "separation from service," as such term is defined in Treas. Reg. Section l.409A-l(h)(l), from the Company (his "Separation from Service"), the Executive is a "specified employee," as such term is defined in Treas. Reg. Section 1.409-1(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Executive earlier than the earlier of (i) six (6) months after the Executive's Separation from Service; or (ii) the date of Executive's death. The 409A Payments under this Agreement that would otherwise be made during such period shall be aggregated and paid in one lump sum, without interest, on the first business day following the end of the six (6) month period or following the date of the Executive's death, whichever is earlier, and the balance of the 409A Payments, if any, shall be paid in accordance with the applicable payment schedule provided in this Section 4. To the extent any 409A Payment is conditioned on the Executive (or Executive's legal representative) executing a release of claims, which 409A Payment would be made in a later taxable year of the Executive than the taxable year in which Executive's Separation from Service occurs if such provision of release were executed and delivered and became irrevocable at the last possible date allowed under this Agreement, references such 409A Payment will be paid no earlier than such later taxable year. In applying Section 409A to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under compensation paid pursuant to this Agreement shall be treated as a separate payment and the Agreement, any right to a series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments. The Executive hereby acknowledges that Executive has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A and applicable State tax law. Executive hereby agrees to bear the entire risk of any such adverse federal and State tax consequences and penalty taxes in the event any payment pursuant to this Agreement is deemed to be subject to Code Section 409A, and that no representations have been made to the Executive relating to the tax treatment of any payment pursuant to this Agreement under Code Section 409A and the corresponding provisions of any applicable State income tax laws.

Compliance with Code Section 409A. The intent of the parties hereto is that payments and benefits under this Agreement comply with or are exempt satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations issued thereunder (collectively “Code Section 409A”) (including without limitation the exemptions for short-term deferrals and separation pay due to involuntary separation from service), and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed be administered in a manner that establishes an exemption from consistent with such intent. To the extent payment and benefits under this Agreement are not so exempt, this Agreement (and any definitions hereunder) shall be interpreted and be administered to be in compliance with Code Section 409A. Nevertheless, the tax treatment of the benefits provided under the Agreement is not US.131878192.02 warranted or compliance with) guaranteed. Neither the requirements Company nor its officers, directors, managers, employees, attorneys or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by Xxxxx as a result of the application of Code Section 409A. Any terms of payments described in this Agreement that are undefined due within the “short-term deferral period” (as defined in Code Section 409A) will not be treated as deferred compensation unless applicable law requires otherwise. If any amount to be paid or ambiguous benefit to be provided to Xxxxx pursuant to this Agreement constitutes deferred compensation subject to Code Section 409A, such payment or benefit shall be interpreted in construed as a manner that complies with Code Section 409A to the extent necessary to comply with separate identified payment for purposes of Code Section 409A. Notwithstanding anything herein to the contrarycontrary in this Agreement, (i) if, on to the date of termination, extent that any payments to be made in connection with Xxxxx’x separation from service would result in the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement imposition of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional individual excise tax and late interest charges imposed under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder will instead be made on the first business day after the earlier of: (without any reduction in such payments or benefits ultimately paid or provided to the Executivea) until the date that is the first business day of the seventh month six (6) months following such separation from service; and (b) the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsXxxxx’x death.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and operated so that the payment of the benefits set forth herein either shall either be exempt from the requirements of Section 409A of the Code or shall comply with the requirements of such provision; provided however that in no event shall the Company be liable to the Executive for or with respect to any taxes, penalties or interest which may be imposed upon the Executive pursuant to Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (id)(i), (d)(iii), (e) ifor (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on the date of terminationthe Executive’s Separation from Service, the Executive is a “specified employee,” as such term is defined in Treas. Reg. Section 1.409-1(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Executive earlier than the earlier of (i) six (6) months after the Executive’s Separation from Service; or (ii) the date of his death. The 409A Payments under this Agreement that would otherwise be made during such period shall be aggregated and paid in one lump sum, without interest, on the first business day following the end of the Codesix (6) month period or following the date of the Executive’s death, whichever is earlier, and the deferral balance of the commencement 409A Payments, if any, shall be paid in accordance with the applicable payment schedule provided in this Section 4. The Executive hereby acknowledges that she has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A and applicable State tax law. The Executive hereby agrees to bear the entire risk of any payments or benefits otherwise payable hereunder as a result of such termination of employment adverse federal and State tax consequences and penalty taxes in the event any payment pursuant to this Agreement is necessary in order deemed to prevent any accelerated or additional tax under be subject to Code Section 409A, then and that no representations have been made to the Company will defer Executive relating to the commencement of the payment tax treatment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided payment pursuant to the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted this Agreement under Code Section 409A), 409A and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to have occurred for purposes corresponding provisions 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate paymentsapplicable State income tax laws.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant is intended to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such be interpreted and operated so that the payments shall and benefits set forth herein will either be paid at exempt from the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning requirements of Section 409A or will comply with the requirements 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 serviceprovision. Each payment made under this Agreement shall be treated of the Base Salary as severance (each, a separate payment and the right to a series of installment payments under this Agreement is to “Severance Payment”) will be treated as a right to a series of separate paymentspayments as set forth in Treasury Regulation 1.409A-2(b)(2)(iii) and no Severance Payment will be paid later than the last day of the second taxable year of Executive following the taxable year of Executive in which occurs a “separation from service” as defined in Treasury Regulation 1.409A-1(h) (“Separation From Service”). To the extent that any Severance Payment constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, (A) in the event that a termination of Executive’s employment does not constitute a Separation From Service, such 409A Payment will begin at such time as Executive has otherwise experienced such a Separation from Service, and the date of such Separation from Service will be deemed to be his Termination Date, and (B) if on the date of Executive’s Separation from Service, Executive is a “specified employee,” as such term is defined in Treas. Reg. Section 1.409A-1(h), as determined from time to time by Company, then such 409A Payment will not be made to Executive earlier than the earlier of (i) six months after Executive’s Separation from Service; or (ii) the date of his death. The 409A Payments under this Agreement that would otherwise be made during such period will be aggregated and paid in one lump sum, without interest, on the first business day following the end of the six month period or following the date of Executive’s death, whichever is earlier, and the balance of the 409A Payments, if any, will be paid in accordance with the applicable payment schedule provided in Section 5. Executive hereby agrees that no representations have been made to Executive relating to the tax treatment of any payment pursuant to this Agreement under Code Section 409A and the corresponding provisions of any applicable state income tax laws.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with with, or are be exempt from from, Internal Revenue Code Section 409A of (“Code Section 409A”) and, accordingly, to the Code and maximum extent permitted, this Agreement shall be interpreted and construed to be in a manner that establishes an exemption from (or compliance with) the requirements of with Code Section 409A. Any terms of this Agreement payments that are undefined qualify for the “short-term deferral” exception, the separation pay exception or ambiguous shall be interpreted in a manner that complies with another exception under Code Section 409A to shall be paid under the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A applicable exception. For purposes of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax limitations on nonqualified deferred compensation under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such each payment or other benefits compliant under Code Section 409A. In the event that installment in a series of payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made under this Agreement shall be treated as a separate payment of compensation. All payments to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” under Code Section 409A to the extent necessary to avoid the imposition of penalty taxes on you pursuant to Code Section 409A. In no event may you, directly or indirectly, designate the calendar year of any payment under this Agreement, and to the extent required by Code Section 409A, any payment that may be paid in more than one taxable year (depending on the time that you execute this Agreement) shall be paid in the later taxable year. In no event shall McDonald’s be liable for any additional tax, interest or penalty that may be imposed on you by Code Section 409A or otherwise or for damages for failing to comply with Code Section 409A. If you are deemed on your Termination Date to be a “specified employee” within the meaning of Code Section 409A, then with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” to the extent required by Code Section 409A, such payment or benefit shall be made or provided on the date which is the earlier of (a) the expiration of the six (6)-month period measured from the date of your “separation from service,” and (b) the date of your death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this section shall be paid or reimbursed to you in a lump sum and all remaining payments and benefits due (if any) shall be paid or provided in accordance with the normal payment dates. With regard to any reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to a series reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of installment payments under this Agreement is 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 treated as provided, in any other taxable year, (iii) such payments shall be made on or before the last day of your taxable year following the taxable year in which the expense occurred and (iv) any reimbursement is for expenses incurred during your lifetime (or during a right to a series shorter period of separate paymentstime specified in this Agreement).

Compliance with Code Section 409A. The intent of the parties is that payments Compensation and benefits payable under this the Agreement comply with or are intended to be exempt from the definition of “nonqualified deferred compensation” under Section 409A of the Code and Code. In this regard, each such payment that is made in a series of scheduled installments shall be deemed a separate identified payment for purposes of Section 409A. To the extent that any amounts or benefits payable under this Agreement are or become subject to Section 409A due to a failure to qualify for an exemption, this Agreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and construed administered to the extent possible in a manner consistent with the foregoing statement of intent. Notwithstanding any contrary provision of this Agreement, any amount or benefit that establishes fails to qualify for an exemption from Section 409A shall be subject to the distribution requirements of Section 409A(a)(2)(A) of the Code, including, without limitation, the requirement of Section 409A(a)(2)(B)(i) of the Code that amounts or benefits payable to you upon separation from service be delayed until the first regular payroll date which occurs more than 6 months after separation from service (or compliance withif earlier, the date of your death) if you are a “specified employee” within the requirements meaning of the aforesaid section of the Code Section 409A. Any at the time of such separation from service, with the first of such payments including all payments which would have been made during the period of such delay without regard thereto and without interest, and with subsequent payments, if any, made in accordance with the dates and terms otherwise provided herein. Your date of this Agreement termination for purposes of determining the date that are undefined any amount or ambiguous shall be interpreted in a manner benefit that complies with is treated as nonqualified deferred compensation under Code Section 409A is to the extent necessary be paid (or in determining whether an exemption to comply with Code Section 409A. Notwithstanding anything herein to the contrarysuch treatment applies), (i) if, and for purposes of determining whether you are a “specified employee” on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until shall be the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by Code Section 409A, a termination of employment shall not be deemed to on which you 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 incurred a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) and applicable guidance thereunder. In each case where this Agreement provides for the payment of an amount or benefit that constitutes nonqualified deferred compensation under Section 409A to be made to you within a designated period and such period begins and ends in different calendar years, the exact payment date within such range shall be determined by the Company, in its sole discretion, and you shall have no right to designate the year in which the payment shall be made. Notwithstanding the provisions of Section 9 of the Agreement, if you are entitled to payments under Section 9 in connection with a Change of Control that does not satisfy the requirements for a change in the ownership or effective control of the Company, or a change in the ownership of a substantial portion of the assets of the Company, under Section 409A of the Code andCode, then the payments shall be made in the same manner as provided for purposes payments due under Section 10, rather than in a lump sum, to the extent necessary to avoid the imposition of additional taxes under Section 409A. In addition, to the extent necessary to avoid the imposition of additional taxes under Section 409A, if any such provision Payments are subject to reduction pursuant to Section 16, the reduction will occur in the manner specified in Section 16, and to the extent not specified, in the manner that produces the greatest economic benefit to you, and you will have no right to elect a different order.” Except as amended hereby, all other terms and conditions of the Agreement shall remain in full force and effect. This letter agreement and the Agreement constitute the complete and entire agreement among the parties relating to the subject matter thereof, and there are no prior or contemporaneous oral or written representations, promises or agreements not expressly set forth therein. This letter agreement may not be modified in any respect except by a writing dated and signed by the parties hereto. In order to confirm your agreement with and acceptance of the foregoing provisions of this Agreementletter agreement, references please sign one copy of this letter and return it to a “termination,” “termination me. The other copy is for your records. Sincerely, Encore Capital Group, Inc. By: /s/ J. Xxxxxxxxxxx Xxxxx J. Xxxxxxxxxxx Xxxxx Member, Board of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.Directors AGREED AND ACCEPTED: /s/ J. Xxxxxxx Xxxxx December 30, 2008

Compliance with Code Section 409A. The intent With respect to reimbursements or in-kind benefits provided under this Agreement: (a) the Company will not provide for cash in lieu of a right to reimbursement or in-kind benefits to which the Executive has a right under this Agreement, (b) any reimbursement or provision of in-kind benefits made during the Executive’s lifetime (or such shorter period prescribed by a specific provision of this Agreement) shall be made not later than December 31st of the parties is that payments year following the year in which the Executive incurs the expense, and (c) in no event will the amount of expenses so reimbursed, or in-kind benefits under this Agreement comply with provided, by the Company in one year affect the amount of expenses eligible for reimbursement, or are exempt from Section 409A in-kind benefits to be provided, in any other taxable year. Each payment, reimbursement or in-kind benefit made pursuant to the provisions of the Code and this Agreement shall be interpreted regarded as a separate payment and construed in not one of a manner that establishes an exemption from (or compliance with) the requirements series of payments for purposes of Code Section 409A. Any terms It is intended that any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with the provisions of Code Section 409A and the treasury regulations relating thereto so as not to subject the Executive to the payment of the additional tax, interest and any tax penalty which may be imposed under Code Section 409A. In furtherance of this interest, to the extent that any provision hereof would result in the Executive being subject to payment of the additional tax, interest and tax penalty under Code Section 409A, the parties agree to amend this Agreement that are undefined or ambiguous shall be interpreted in order to bring this Agreement into compliance with Code Section 409A; and thereafter interpret its provisions in a manner that complies with Code Section 409A 409A. Reference to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein 409A is to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the CodeInternal Revenue Code of 1986, as amended, and will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of Treasury or the Internal Revenue Service. Notwithstanding the foregoing, no particular tax result for the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the deferral of the commencement of Executive shall be responsible for any payments taxes, penalties and interest imposed on him under or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then 409A in connection with the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

Compliance with Code Section 409A. The intent Company makes no representations or warranties regarding the tax implications of the parties is that payments compensation and benefits to be paid to the Employee under this Agreement comply with or are exempt from Agreement, including, without limitation, under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and applicable administrative guidance and regulations (“Section 409A”). It is the intention of the parties hereto that payments under this Agreement be interpreted to be exempt from or in compliance with Section 409A and accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed to be exempt from or in a manner that establishes an exemption from (or compliance with) the requirements of Code with Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to To the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive hereunder Employee under this Agreement could cause the application of an accelerated acceleration or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In 409A, or otherwise such payments or other benefits shall be restructured, to the event extent possible, in a manner determined by the Company that does not cause such acceleration or additional tax. To the extent any payments of money or other benefits due to the Employee under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax could cause the application of an acceleration or additional tax under Code Section 409A, then such payments shall be paid at the time specified under any references in this Section without any interest thereon. Notwithstanding anything Agreement to the contrary herein, separation of the Employee’s employment shall mean his separation from service within the meaning of Section 409A. With respect to any payments due to the extent required by Code Employee as a result of the separation of his employment, if necessary to comply with Section 409A, a termination and if the Employee is deemed on the date of employment shall not separation to 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 servicespecified employee” within the meaning of that term under Section 409A of the Code and409A, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement payments shall be treated made as follows: (i) no payments shall be made for a separate payment six-month period following the date of separation and (ii) an amount equal to the right to aggregate sum that would have been otherwise payable during the initial six-months period shall be paid in a series lump sum six (6) months plus one (1) day following the date of installment payments under this Agreement is to be treated as a right to a series of separate paymentsseparation.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and ("Section 409A") to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed administered to be in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. therewith. Notwithstanding anything herein to the contrary, (i) ifif at the time of Xx. Xxxxx' termination of service with the Company, on the date of termination, the Executive Xx. Xxxxx is a “"specified employee” " as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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 ExecutiveXx. Xxxxx) until the date that is six months following Xx. Xxxxx' termination of service with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A), and (ii) if any other payments of money or other benefits due to the Executive Xx. Xxxxx hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then or otherwise such payments payment or other benefits shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinrestructured, to the extent possible, in a manner, determined by the Company that does not cause such an accelerated or additional tax, (iii) to the extent required by Code in order to avoid accelerated taxation and/or tax penalties under Section 409A, a termination of employment Xx. Xxxxx shall not be deemed considered to have occurred terminated service with the Company for purposes of any provision of this Agreement providing for the and no payment shall be due to Xx. Xxxxx under this Agreement on account of amounts or benefits upon or following a termination of employment unless any such termination is also until Xx. Xxxxx would be considered to have incurred a “"separation from service” " from the Company within the meaning of Section 409A of the Code and409A, and (iv) each amount to be paid or benefit to be provided to Xx. Xxxxx pursuant to this Agreement shall be construed as a separate identified payment for purposes of any such provision of this AgreementSection 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, references amounts reimbursable to a “termination,” “termination of employment” or like terms shall mean separation from serviceXx. Each payment made Xxxxx under this Agreement shall be treated as a separate payment paid to Xx. Xxxxx on or before the last day of the year following the year in which the expense was incurred and the right amount of expenses eligible for reimbursement (and in-kind benefits provided to a series Xx. Xxxxx) during any one year may not effect amounts reimbursable or provided in any subsequent year. The Company shall consult with Xx. Xxxxx in good faith regarding the implementation of installment payments under the provisions of this Agreement is Section 9(f); provided that neither the Company nor any of its employees or representatives shall have any liability to be treated as a right Xx. Xxxxx with respect to a series of separate paymentsthereto.

Compliance with Code Section 409A. The intent of To the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and extent applicable, this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies accordance with Code Section 409A to of the extent necessary to comply with Internal Revenue Code Section 409A. of 1986, as amended (the “Code”), and 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 Execution Date. Notwithstanding anything herein any provision of the Agreement to the contrary, (i) if, on if at the date time of termination, the Executive’s termination of employment with the Company the Executive is a “specified employee” as defined in Section 409A Code and related Department of the Code, Treasury guidance and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will may defer 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) until the date that is the first business day of the seventh month six months following the date Executive’s termination of termination employment with the Company (or the earliest date as is permitted under Code Section 409A), 409A of the Code) and (ii) 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 Code Section 409A409A of the Code, the Company may (a) adopt such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything amendments to the contrary hereinAgreement, including amendments with retroactive effect, that the Company determines necessary or appropriate to preserve the extent required intended tax treatment of the benefits provided by Code Section 409A, a termination of employment shall not be deemed the Agreement and/or (b) take such other actions as the Company determines necessary or appropriate to have occurred for purposes of any provision of this Agreement providing for comply with 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 requirements of Section 409A of the Code and, for purposes and related Department of any such provision Treasury guidance. The Company shall consult with the Executive in good faith regarding the implementation of this AgreementSection14; provided that neither the Company nor any of its employees or representatives shall have any liability to the Executive with respect thereto. Except as modified by this letter, references to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this the Employment Agreement shall be treated remain in full force and effect in accordance with its terms. If you agree to the foregoing, please countersign the enclosed counterpart of this letter in the appropriate space below and return the signed copy to the undersigned. STERLING JEWELERS INC. By: /s/ Xxxx X. Xxxxx Name: Xxxx X. Xxxxx Title: President and CEO Accepted and agreed as a separate payment and of the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.first date written above. /s/ Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx

Compliance with Code Section 409A. The intent of the parties is that payments and benefits amounts payable under this Agreement are intended to comply with or are exempt the “short term deferral” exception from Section 409A of the Internal Revenue Code specified in Treas. Reg. § 1.409A-1(b)(4) (or any successor provision) or the separation pay plan exception specified in Treas. Reg. § 1.409A-1(b)(9) (or any successor provision), or both of them, and shall be interpreted in a manner consistent with those exceptions. Notwithstanding the foregoing, to the extent that any amounts payable in accordance with this Agreement are subject to Section 409A, this Agreement shall be interpreted and construed administered in such a manner that establishes an exemption from (or compliance with) way as to comply with the requirements applicable provisions of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the maximum extent necessary possible. To the extent that this Agreement is subject to Section 409A and fails to comply with Code the requirements of Section 409A, the Company reserves the right (without any obligation to do so) to amend, restructure, terminate or replace this Agreement in order to cause this Agreement either to comply with the applicable provisions of Section 409A or not be subject to Section 409A. Notwithstanding anything herein to the contrary, If payment of any amount of “deferred compensation” (ias defined under Section 409A) if, on the date of termination, the Executive is triggered by a separation from service that occurs while you are a “specified employee” (as defined in under Section 409A of the Code409A) with respect to Company, and if such amount is scheduled to be paid within six (6) months after such separation from service, the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (amount shall accrue without any reduction in such payments or benefits ultimately interest and shall be paid or provided to the Executive) until the date that is the first business day after the end of such six-month period, or, if earlier, within 15 days after the appointment of the seventh month following the date of termination (personal representative or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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 executor 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 serviceyour estate following your death. Each payment made of compensation under this the Agreement shall be treated as a separate payment of compensation for purposes of applying Section 409A. “Termination of employment,” “retirement,” “resignation” or words of similar import, as used in this Agreement shall mean, with respect to any payments of deferred compensation subject to Section 409A of the Code, your “separation from service” as defined in Section 409A. You shall not have the ability to control, directly or indirectly, the timing of any payments of deferred compensation subject to Section 409A. Any payments that are deferred compensation subject to Section 409A, and that could occur in one of two calendar years depending on the right timing of an action by you, such as the delivery of a release, will always occur in the later year. Nothing in this Agreement shall be construed as a guarantee of any particular tax treatment to a series of installment payments Employee. You are solely responsible for the tax consequences with respect to all amounts payable under this Agreement, and in no event shall the Company have any responsibility or liability if this Agreement is does not meet any applicable requirements of Section 409A. If the above accurately states our agreement, including the separation, waiver and release, kindly sign below and return the original Agreement to be treated as me. I will sign it and return a right copy to a series of separate payments.you. Sincerely, ARCONIC CORPORATION By: /s/ Xxx Xxxxx Xxx Xxxxx Chief Executive Officer Date: November 17, 2021 UNDERSTOOD, AGREED TO AND ACCEPTED WITH THE INTENTION TO BE LEGALLY BOUND: /s/ Xxxxx X. Xxxxx XXXXX XXXXX Date: November 17, 2021 Enclosures EXHIBIT A

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive this Agreement is a “specified employee” as defined in Section 409A of the Code, intended to be interpreted and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer the commencement of operated so that the payment of any such payments or the benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to set forth herein either shall either be exempt from the Executive) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning requirements of Section 409A of the Code andor shall comply with the requirements of such provision; provided however that in no event shall the Company be liable to the Employee for or with respect to any taxes, for purposes penalties or interest which may be imposed upon the Employee pursuant to Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(ii), (e) or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on the date of the Employee's Separation from Service, the Employee is a “specified employee,” as such term is defined in Treas. Reg. Section 1.409-1(i), as determined from time to time by the Company, then such 409A Payment shall not be made to the Employee earlier than the earlier of (i) six (6) months after the Employee's Separation from Service; or (ii) the date of his death. The 409A Payments under this Agreement that would otherwise be made during such period shall be aggregated and paid in one lump sum, without interest, on the first business day following the end of the six (6) month period or following the date of the Employee's death, whichever is earlier, and the balance of the 409A Payments, if any, shall be paid in accordance with the applicable payment schedule provided in this Section 4. The Employee hereby acknowledges that she has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Employee of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A and applicable State tax law. The Employee hereby agrees to bear the entire risk of any such provision of this Agreement, references adverse federal and State tax consequences and penalty taxes in the event any payment pursuant to a “termination,” “termination of employment” or like terms shall mean separation from service. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is deemed to be treated as a right subject to a series Code Section 409A, and that no representations have been made to the Employee relating to the tax treatment of separate payments.any payment pursuant to this Agreement under Code Section 409A and the corresponding provisions of any applicable State income tax laws.(j)

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on the date of termination, the Executive is a “specified employee” as defined in Section 409A of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then the Company will defer 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) until the date that is the first business day of the seventh month following the date of termination (or the earliest date as is permitted under Code Section 409A), and (ii) 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 Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Agreement are deferred pursuant is intended to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such be interpreted and operated so that the payments shall and benefits set forth herein will either be paid at exempt from the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning requirements of Section 409A or will comply with the requirements 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 serviceprovision. Each payment made of the Base Salary under this Agreement shall be treated Section 5(b) as severance (each, a separate payment and the right to a series of installment payments under this Agreement is to “Severance Payment”) will be treated as a right to a series of separate paymentspayments as set forth in Treasury Regulation 1.409A-2(b)(2)(iii) and no Severance Payment will be paid later than the last day of the second taxable year of Executive following the taxable year of Executive in which occurs a “separation from service” as defined in Treasury Regulation 1.409A-1(h) (“Separation From Service”). To the extent that any Severance Payment constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, (A) in the event that a termination of Executive’s employment does not constitute a Separation From Service, such 409A Payment will begin at such time as Executive has otherwise experienced such a Separation from Service, and the date of such Separation from Service will be deemed to be his Termination Date, and (B) if on the date of Executive’s Separation from Service, Executive is a “specified employee,” as such term is defined in Treas. Reg. Section 1.409A-1(h), as determined from time to time by Company, then such 409A Payment will not be made to Executive earlier than the earlier of (i) six months after Executive’s Separation from Service; or (ii) the date of his death. The 409A Payments under this Agreement that would otherwise be made during such period will be aggregated and paid in one lump sum, without interest, on the first business day following the end of the six month period or following the date of Executive’s death, whichever is earlier, and the balance of the 409A Payments, if any, will be paid in accordance with the applicable payment schedule provided in Section 5. Executive hereby agrees that no representations have been made to Executive relating to the tax treatment of any payment pursuant to this Agreement under Code Section 409A and the corresponding provisions of any applicable state income tax laws.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with with, or are be exempt from from, Internal Revenue Code Section 409A of (“Code Section 409A”) and, accordingly, to the Code and maximum extent permitted, this Agreement shall will be interpreted and construed to be in a manner that establishes an exemption from (or compliance with) the requirements of with Code Section 409A. Any terms of this Agreement In no event xxxx XxXxxxxx’x be liable for any additional tax, interest or penalty that are undefined or ambiguous shall may be interpreted in a manner that complies with imposed on you by Code Section 409A to the extent necessary or otherwise or for damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, If you are deemed on the date of termination, the Executive is termination to be a “specified employee” as defined in Section 409A within the meaning of the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then with regard to any payment or the Company provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment or benefit will defer be made or provided at the commencement date which is the earlier of (A) the expiration of the payment of any such payments or benefits hereunder six (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is the first business day of the seventh month following 6)-month period measured from the date of termination (or the earliest date as is permitted under Code Section 409A), your “separation from service,” and (iiB) if any other payments the date of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. In the event that payments under this Separation Agreement are deferred pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary hereinyour death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this paragraph will be paid or reimbursed to you in a lump sum and all remaining payments and benefits due (if any) will be paid or provided in accordance with the normal payment dates. With regard to any reimbursement of costs and expenses or in-kind benefits, except as permitted by 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 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. Each payment made under this Agreement shall be treated as a separate payment and (i) the right to a series reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, (ii) the amount of installment payments under this Agreement is expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year will not affect the expenses eligible for reimbursement, or in-kind benefits to be treated as a right to a series provided, in any other taxable year, and (iii) such payments will be made on or before the last day of separate paymentsyour taxable year following the taxable year in which the expense occurred.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, (i) if, on if at the date time of termination, Executive’s termination of services with the Company Executive is a “specified employee” as defined in Section 409A of the Internal Revenue Code (the “Code”), and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A409A of the Code, then the Company will defer 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) until the first business day to occur following the date that is six (6) months following Executive’s termination of employment with the first business day of the seventh month following the date of termination Company (or the earliest date as is permitted under Code Section 409A409A of the Code), ; and (ii) 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 Code Section 409A409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A. 409A of the Code, 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. In the event that payments under this Agreement are deferred pursuant to this Section 18 in order to prevent any accelerated tax or additional tax under Code Section 409A409A of the Code, then such payments shall be paid at the time specified under this Section 10 without any interest thereon. The Company shall consult with Executive in good faith regarding the implementation of this Section 18; provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, to the extent required by 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 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 “resignation,” “termination,” “termination of employment” or like terms shall mean separation from service. Each For purposes of Section 409A of the Code, each payment made under this Agreement shall be treated designated as a “separate payment and payment” within the right to a series meaning of installment payments under this Agreement is to be treated as a right to a series the Section 409A of separate paymentsthe Code.

Compliance with Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Code and this Agreement shall be interpreted and construed in a manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and operated so that the payment of the benefits set forth herein shall either be exempt from the requirements of Section 409A of the Code or shall comply with the requirements of such provision; provided however that in no event shall the Company be liable to the Executive for or with respect to any taxes, penalties or interest which may be imposed upon the Executive pursuant to Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), 4(d)(i), 4(d)(iii) or 4(f) constitutes a “deferral of compensation” subject to Section 409A (i) ifa “409A Payment”), then, if on the date of terminationthe Executive’s “separation from service,” as such term is defined in Treas. Reg. Section 1.409A-1(h)(1), from the Company (his “Separation from Service”), the Executive is a “specified employee,” as such term is defined in Treas. Reg. Section 409A of 1.409-1(i), as determined from time to time by the Code, and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409ACompany, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided 409A Payment shall not be made to the Executive earlier than the earlier of (i) six (6) months after the Executive’s Separation from Service; or (ii) until the date of Executive’s death. The 409A Payments under this Agreement that is would otherwise be made during such period shall be aggregated and paid in one lump sum, Employment Agreement – Xxxx Xxxxxxxxx EXECUTION VERSION without interest, on the first business day following the end of the seventh six (6) month period or following the date of termination the Executive’s death, whichever is earlier, and the balance of the 409A Payments, if any, shall be paid in accordance with the applicable payment schedule provided in this Paragraph 4. To the extent any 409A Payment is conditioned on the Executive (or the earliest date as is permitted under Code Section 409A)Executive’s legal representative) executing a release of claims, and (ii) if any other payments which 409A Payment would be made in a later taxable year of money or other benefits due to the Executive hereunder could cause than the application of an accelerated or additional tax taxable year in which Executive’s Separation from Service occurs if such release were executed and delivered and became irrevocable at the last possible date allowed under Code Section 409Athis Agreement, such payments or other benefits shall 409A Payment will be deferred if deferral will make paid no earlier than such payment or other benefits compliant under Code later taxable year. In applying Section 409A. In the event that payments under this Agreement are deferred 409A to compensation paid pursuant to this Section in order to prevent any accelerated tax or additional tax under Code Section 409A, then such payments shall be paid at the time specified under this Section without any interest thereon. Notwithstanding anything to the contrary herein, to the extent required by 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 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. Each payment made under this Agreement shall be treated as a separate payment and the any right to a series of installment payments under this Agreement is to shall be treated as a right to a series of separate payments. The Executive hereby acknowledges that Executive has been advised to seek and has sought the advice of a tax advisor with respect to the tax consequences to the Executive of all payments pursuant to this Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A and applicable State tax law. Executive hereby agrees to bear the entire risk of any such adverse federal and State tax consequences and penalty taxes in the event any payment pursuant to this Agreement is deemed to be subject to Code Section 409A, and that no representations have been made to the Executive relating to the tax treatment of any payment pursuant to this Agreement under Code Section 409A and the corresponding provisions of any applicable State income tax laws.