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

Compliance 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), (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 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 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. 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 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. Notwithstanding anything herein Any payment under this Section 7 is subject to the contrary, provisions of this Agreement is intended to be interpreted and operated so that the Section 7(h) (except for a 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 Disability or death under Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii7(d) or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”e), then, if on the date of the 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 If Executive is a “specified employee,” as such term is defined "Specified Employee" of the Company for purposes of Code Section 409A at the time of a payment event in Treas. Reg. Section 1.409-1(i)7(b) and if no exception from Code Section 409A applies in whole or in part, as determined from time to time by the Company, then such 409A Payment shall not severance or other payments will be made to Executive by 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, Company on the first business day following the end of the six (6) seventh month period or following the date of the Executive’s death's Separation from Service (the "409A Payment Date"). Should this Section 7(h) result in a delay of payments to Executive, whichever is earlierthe Company will begin to make the payments as described in this Section 7, and provided that any amounts that would have been payable earlier but for the application of 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 409A Payments, if any, shall severance payments will be paid payable in accordance with regular payroll timing and the applicable payment schedule provided COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in this Code Section 4409A(a)(2)(B)(i), or any successor provision and the issued treasury regulations and rulings. The Executive hereby acknowledges that he has been advised to seek and has sought the advice "Separation from Service" or "Termination of a tax advisor Employment" means, 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 that 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.either

Compliance with Code Section 409A. Notwithstanding anything herein 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 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 contrary, 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 to be interpreted that any amounts payable under this Agreement and operated so that the payment Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with the benefits set forth herein either shall either be exempt from the requirements provisions of Section 409A of the Code or shall comply with and the requirements of such provision; provided however that in no event shall Treasury regulations relating thereto so as not to subject the Company be liable 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 in order to bring this Agreement into compliance with Section 409A of the Code; and thereafter interpret its provisions in a manner that complies with 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 or the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on her under 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 as a “deferral result 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 Code 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 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 connection 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 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. Notwithstanding anything herein to the contrary(a) This Agreement shall be construed, this Agreement is intended to be interpreted interpreted, and operated administered in a manner so that the payment of benefits, payments, and reimbursements under this Agreement or the benefits set forth herein either shall either be exempt from plans, policies, or programs referred to in this Agreement that are nonqualified deferred compensation under Code Section 409A will satisfy the requirements of Code Section 409A and will not result in the imposition of the additional tax under Code or Section 409A. (b) Each payment of compensation under this Agreement shall comply with the requirements be treated as a separate payment for purposes 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. Any series of installment payments shall be treated as a right to a series of separate payments, and not one of a series of payments treated as a single payment for purposes of Code Section 409A. (c) To the extent that any amount payable pursuant benefits, payments, and reimbursements under this Agreement or the plans, policies, or programs referred to Subsections 4(b)in this Agreement are nonqualified deferred compensation under Code Section 409A, (d)(i), (d)(iii) are paid or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on provided during the date of the 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 date of Separation from Service, and are paid or provided by virtue of the Executive’s Separation from Service; or (ii) , the Company shall take the following actions. If the Executive is a specified employee on the date of his deathSeparation from Service, and to the extent not otherwise provided in this Agreement or the plans, policies, or programs referred to in this Agreement, the Company shall withhold these benefits, payments, and reimbursements from the date of Separation from Service through the end of the sixth month after the date of Separation from Service (the “Mandatory Holdback Period”). The 409A Payments under this Agreement that would otherwise be made during such period Company shall be aggregated pay and paid provide these benefits, payments, and reimbursements in one a single lump sum, without interest, sum on the first business day following the end of the six seventh (67th) month period after the date of Separation from Service, or following if earlier, no later than thirty days after the date of the Executive’s deathdeath after the date of Separation from Service (the “Mandatory Delayed Payment Date”). If the Company withholds any in-kind benefit or reimbursement during the Mandatory Holdback Period, whichever is earlierthe Executive may pay the provider of the benefit or service, and receive reimbursement on the balance of Mandatory Delayed Payment Date. (d) All reimbursements and in-kind benefits made to the Executive that are nonqualified deferred compensation under Code Section 409A Payments, if any, shall be paid made or provided in accordance with the applicable payment schedule provided requirements of Code Section 409A, 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 such period is specified, during the Executive’s lifetime, (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 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. (e) The definitions of Good Reason in Sections 8(c) and 9(h) of this Agreement are intended to satisfy the requirements of Treasury Regulation Section 4. The Executive hereby acknowledges 1.409A-1(n)(2) so 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 Separation from Service or penalty taxes Covered Termination for Good Reason will be treated as an involuntary Separation from Service under Code Section 409A 409A. (f) The Executive acknowledges that to avoid an additional tax on payments that may be payable under this Agreement and applicable State tax law. that constitute deferred compensation that is not exempt from Code Section 409A, the Executive hereby agrees must make a reasonable, good faith effort to bear the entire risk of any such adverse federal and State tax consequences and penalty taxes in the event collect any payment pursuant or benefit to which Executive believes Executive is entitled hereunder no later than ninety (90) days of the latest date upon which the payment could under this Agreement is deemed to be subject could have been timely paid pursuant 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 if not paid or provided, take further enforcement measures within 180 days after such latest date. (g) The provisions of this Section 19 control over any applicable State income tax lawsconflicting provisions of this Agreement, or the plans, policies, or programs referred to in this Agreement.

Compliance 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), (d)(i4(d)(i), (d)(iii4(d)(iii) or (f4(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 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 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, Employment Agreement – ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 Paragraph 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 release were executed and delivered and became irrevocable at the last possible date allowed under this Agreement, such 409A Payment will be paid no earlier than such later taxable year. In applying Section 4409A to compensation paid pursuant to this Agreement, any right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. The Executive hereby acknowledges that he 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. Notwithstanding anything herein 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 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 contrary, 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 to be interpreted that any amounts payable under this Agreement and operated so that the payment Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with the benefits set forth herein either shall either be exempt from the requirements provisions of Section 409A of the Code or shall comply with and the requirements of such provision; provided however that in no event shall treasury regulations relating thereto so as not to subject the Company be liable 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 in order to bring this Agreement into compliance with Code Section 409A; and thereafter interpret its provisions in a manner that complies with 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 or the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on him under 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 as a “deferral result 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 Code 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 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 connection with the applicable payment schedule provided in this Section 4Agreement. 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▇▇▇▇▇▇ Employment Agreement – April 29, 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.2009

Compliance with Code Section 409A. Notwithstanding anything herein to the contrary, this 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 Code Section 409A, and shall be interpreted and construed consistently with such provisionintent. Each payment and benefit hereunder, including each portion of the Units that potentially could be settled at a separate Settlement Date and each payment of Dividend Equivalents, shall constitute a “separately identified” amount within the meaning of Treasury Regulation Section 1.409A-2(b)(2). In the event that the terms of this Agreement would subject the Employee to taxes or penalties under Code Section 409A (“409A Penalties”), the Company and Employee shall cooperate diligently to amend the terms of this Agreement to avoid such 409A Penalties, to the extent possible; provided however that in no event shall the Company be liable responsible for any 409A Penalties that arise in connection with any amounts payable under this Agreement. Notwithstanding anything contained herein to the Executive for or with respect to any taxescontrary, 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 if Employee is considered a “deferral specified employee” within the meaning of compensation” subject to Code Section 409A (a “409A Payment”), then, if as determined in accordance with the methodology established by the Company as in effect on the date of Termination of Employment), all Units and Dividend Equivalents that constitute nonqualified deferred compensation within the Executivemeaning of Code Section 409A and that are to be settled on account of Employee’s Termination of Employment shall instead be settled on the first business day of the seventh month following Employee’s “separation from service” within the meaning of Code Section 409A (the “Delayed Payment Date”). If Employee dies during the Code Section 409A postponement period, the Units delayed on account of Code Section 409A shall be paid to the personal representative of her estate on the first to occur of the Delayed Payment Date or 30 days after the date of Employee’s death. Despite any contrary provision of this Agreement, any references to Termination of Employment or the date of termination shall mean and refer to the date of Employee’s “separation from service,” as such that 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 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. 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 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 Treasury Regulation 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 laws1.409A-1(h).

Compliance with Code Section 409A. Notwithstanding anything herein 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 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 contrary, provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Code Section 409A. It is intended to be interpreted that any amounts payable under this Agreement and operated so that the payment Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with the benefits set forth herein either shall either be exempt from the requirements provisions of Section 409A of the Code or shall comply with and the requirements of such provision; provided however that in no event shall treasury regulations relating thereto so as not to subject the Company be liable 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 in order to bring this Agreement into compliance with Code Section 409A; and thereafter interpret its provisions in a manner that complies with 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 or the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on him under 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 as a “deferral result 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 Code 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 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 connection 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 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. Notwithstanding anything herein Any payment under this Section 6 is subject to the contrary, provisions of this Agreement is intended to be interpreted and operated so that the Section 6(h) (except for a 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 Disability or death under Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii6(d) or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”e), then, if on the date of the 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 If Executive is a “specified employee,Specified Employee” as such term is defined of the Company for purposes of Code Section 409A at the time of a payment event in Treas. Reg. Section 1.409-1(i)6(b) and if no exception from Code Section 409A applies in whole or in part, as determined from time to time by the Company, then such 409A Payment shall not severance or other payments will be made to Executive by 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, Company on the first business day following the end of the six (6) seventh month period or following the date of the Executive’s deathSeparation from Service (the “409A Payment Date”). Should this Section 6(h) result in a delay of payments to Executive, whichever is earlierthe Company will begin to make the payments as described in this Section 6, and provided that any amounts that would have been payable earlier but for the application of this Section 6(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 409A Payments, if any, shall severance payments will be paid payable in accordance with regular payroll timing and the applicable payment schedule provided COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in this Code Section 4409A(a)(2)(B)(i), or any successor provision and the issued treasury regulations and rulings. The Executive hereby acknowledges that he has been advised to seek and has sought the advice “Separation from Service” or “Termination of a tax advisor Employment” means, 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 that is deemed to be subject to Code Section 409A, 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 no representations have been made 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 relating has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other 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 tax treatment employment relationship is deemed to terminate on the first day immediately following the expiration of any payment such six-month period. Whether a termination of employment has occurred will be determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to this Agreement under Code Section 409A and 409A. If the corresponding provisions payment is not subject to Code Section 409A, the term termination of any applicable State income tax lawsemployment will be given its ordinary meaning.

Compliance with Code Section 409A. Notwithstanding anything herein to the contrary(a) This Agreement shall be construed, this Agreement is intended to be interpreted interpreted, and operated administered in a manner so that the payment of benefits, payments and reimbursements under this Agreement or the benefits set forth herein either shall either be exempt from plans, policies, or programs referred to in this Agreement that are nonqualified deferred compensation under Code Section 409A will satisfy the requirements of Code Section 409A and will not result in the imposition of the additional tax under 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. 409A. (b) To the extent that any amount payable pursuant benefits, payments, and reimbursements under this Agreement or the plans, policies, or programs referred to Subsections 4(b)in this Agreement are nonqualified deferred compensation under Code Section 409A, are paid or provided during the six (d)(i), (d)(iii6) or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on months after the date of termination of employment and are paid or provided by virtue of the Executive’s “separation from service,” as such term is defined in Treas. Reg. Section 1.409A-1(h)(1)termination of employment, from the Company (his “Separation from Service”), shall take the following actions. If the Executive is a “specified employee,” as such term is defined in Treas. Reg. under Code 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) on the date of his deathtermination of employment, and to the extent not otherwise provided in this Agreement or the plans, policies, or programs referred to in this Agreement, the Company shall withhold these benefits, payments, and reimbursements from the date of termination of employment through the end of the sixth month after the date of termination of employment (the “Mandatory Holdback Period”). The 409A Payments under this Agreement that would otherwise be made during such period Company shall be aggregated pay and paid provide these benefits, payments, and reimbursements in one a single lump sum, without interest, sum on the first business day following the end of the six seventh (67th) month period after the date of termination of employment, or following if earlier, no later than thirty days after the date of the Executive’s deathdeath after the date of termination of employment (the “Mandatory Delayed Payment Date”). If the Company withholds any in-kind benefit or reimbursement during the Mandatory Holdback Period, whichever is earlier, and the balance Executive may pay the provider of the 409A Payments, if any, shall be paid in accordance with benefit or service and receive reimbursement on the applicable payment schedule provided in Mandatory Delayed Payment Date. (d) The provisions of this Section 4. The Executive hereby acknowledges that he has been advised to seek and has sought the advice 16 control over any conflicting provisions 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 the plans, policies, or programs referred 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 lawsAgreement.

Compliance 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 Sections 4(b), (d)(i4(d)(i), (d)(iii4(d)(ii) or (f) constitutes a “deferral of compensation” subject to Section 409A of the Code (a “409A Payment”), then, if on the date of the 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 (1) 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 his 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 his Separation from Service occurs if such release were executed and delivered and became irrevocable at the last possible date allowed under this Agreement, such 409A Payment will be paid no earlier than such later taxable year. In applying Section 409A of the Code to compensation paid pursuant to this Agreement, any right to a series of installment payments under this Agreement 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 hereby agrees to bear and not the entire risk of any such adverse federal Company responsible for penalties and State tax consequences and penalty taxes interest that may be imposed 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 lawsis violated.

Compliance with Code Section 409A. Notwithstanding anything herein Any payment under this Section 9 is subject to the contrary, provisions of this Agreement is intended to be interpreted and operated so that the Section 9(i) (except for a 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 Disability or death under Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii9(e) 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 1.409A-1(h)(1), from the Company (his “Separation from Service”), the If Executive is a “specified employee,Specified Employee” as such term is defined of the Company for purposes of Code Section 409A at the time of a payment event in Treas. Reg. Sections 9(b) or (c) and if no exception from Code Section 1.409-1(i)409A applies in whole or in part, as determined from time to time by the Company, then such 409A Payment severance or other payments shall not be made to Executive by 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, Company on the first business day following the end of the six (6) seventh month period or following the date of the Executive’s deathSeparation from Service (the “409A Payment Date”). Should this Section 9(i) result in a delay of payments to Executive, whichever is earlierthe Company shall begin to make the payments as described in this Section 9, and provided that any amounts that would have been payable earlier but for the balance application of the 409A Payments, if anythis Section 9(i), shall 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 shall be payable in accordance with regular payroll timing and the applicable payment schedule provided COBRA premiums shall be paid monthly. For purposes of this provision, the term Specified Employee has the meaning in this Code Section 4409A(a)(2)(B)(i), or any successor provision and the issued treasury regulations and rulings. The Executive hereby acknowledges that he has been advised to seek and has sought the advice “Separation from Service” or “Termination of a tax advisor Employment” means, 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 that is deemed to be subject to Code Section 409A, 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 no representations have been made 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 relating has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other 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 tax treatment employment relationship is deemed to terminate on the first day immediately following the expiration of any payment such six-month period. Whether a termination of employment has occurred will be determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to this Agreement under Code Section 409A and 409A. If the corresponding provisions payment is not subject to Code Section 409A, the term termination of any applicable State income tax lawsemployment will be given its ordinary meaning.

Compliance with Code Section 409A. Notwithstanding anything herein 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 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 contrary, 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 to be interpreted that any amounts payable under this Agreement and operated so that the payment Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with the benefits set forth herein either shall either be exempt from the requirements provisions of Section 409A of the Code or shall comply with and the requirements of such provision; provided however that in no event shall treasury regulations relating thereto so as not to subject the Company be liable 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 in order to bring this Agreement into compliance with Code Section 409A; and thereafter interpret its provisions in a manner that complies with 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 or the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on him under 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 as a “deferral result 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 Code 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 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 connection 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 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. Notwithstanding anything herein in this Agreement to the contrary, this Agreement if the Employee is intended subject to be interpreted and operated so that U.S. Federal income tax on any part of the payment of the benefits set forth herein either shall either be exempt from RSUs and 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), (d)(i), (d)(iii) or (f) constitutes a “deferral of compensation” Award is subject to Section 409A (a “409A Payment”)409A, then, if on then the date RSUs shall be subject to the following provisions of this Section 9. If the 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 Employee is a “specified employee,” within the meaning of Section 409A, any payment of RSUs under Section 8 of 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 day of the seventh month beginning after the date of the Employee’s separation from service or, if earlier, as 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 4 of this Agreement, and such amounts shall be paid to the Employee as such term dividends are paid. In the event of a “Change in Control” under section 6(b) of the Plan that is defined not also a “change in control event” within the meaning of Treas. Reg. Section 1.409-1(i§1.409A-3(i)(5)(i), the RSUs shall vest as determined from time to time by set forth in section 6(a) of the CompanyPlan, then such 409A Payment but shall not be made to paid upon such Change in Control as provided by section 6(a) of the Executive earlier than Plan, and shall instead be paid at the earlier of (i) six (6) months after time the Executive’s Separation from Service; or (ii) the date of his death. The 409A Payments under this Agreement that RSUs 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. 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. References to termination of employment and separation from service shall be interpreted to mean a separation from service, including any adverse tax consequences or penalty taxes under Code Section 409A and applicable State tax law. Executive hereby agrees to bear within the entire risk meaning 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, with the Company and that no representations have been made to all of 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 Section 409A, the Executive relating to the tax treatment payment of any payment pursuant to dividend equivalents under Section 4 of this Agreement under Code Section 409A shall be construed as earnings and the corresponding provisions time and form of any applicable State income tax lawspayment of such dividend equivalents shall be treated separately from the time and form of payment of the underlying RSUs.

Compliance with Code Section 409A. Notwithstanding anything herein to To the contraryextent applicable, this Agreement is intended to shall be interpreted in accordance with Code section 409A and operated so Treasury Regulations and other interpretative guidance issued thereunder, including without limitation any such regulations or other such guidance that may be issued after the payment Effective Date (collectively, “Section 409A”). (a) For purposes of applying the benefits set forth herein either shall either be exempt from the requirements provisions of Section 409A to this Agreement, each separately identified amount to which Executive is entitled under this Agreement shall be treated as a separate payment. In addition, to the extent permissible under Section 409A, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Code or shall comply with the requirements of such provision; provided however that in no event shall the Company be liable Company. (b) Any reimbursement under this Agreement, to the extent it constitutes a deferral of compensation under 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 with respect in-kind benefits provided to Executive in 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)other calendar year, (d)(i), (d)(iiiii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on before the date last day of the calendar year following the calendar year in which the applicable expense is incurred, and (iii) the right to reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. (c) Notwithstanding anything to the contrary in this Agreement, no compensation or benefits (including, without limitation, any severance payments under Section 7) shall be paid to Executive during the six (6)-month period following Executive’s “separation from service,” as such term is defined in Treas. Reg. (within the meaning of Section 1.409A-1(h)(1), from 409A) if the Company (his “Separation from Service”), determines that the Executive is a “specified employee,” Specified Employee (defined below) and that paying such amounts at the time or times indicated in this Agreement would subject the Executive to taxation under Code section 409A(a)(2)(B)(i). If the payment of any such amounts is delayed as such term is defined in Treas. Reg. Section 1.409-1(i), as determined from time to time by a result of the Companyprevious sentence, 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 six (6) seventh month period or following the date of the Executive’s deathseparation from service (or such earlier date upon which such amount can be paid under Section 409A without resulting in a prohibited distribution, whichever is earlier, and the balance including as a result of the Executive’s death (the “409A PaymentsPayment Date”), if anythe Company shall begin to make such payments as described in this Section 18, provided that any amounts that would have been payable earlier but for the application of this Section 18, shall be paid in accordance lump-sum on the 409A Payment Date along with accrued interest at the applicable payment schedule provided in this Section 4. The rate of interest announced by Bank of America, Arizona from time to time as its prime rate from the date that payments to 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 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 should have been made to under this Agreement. For purposes of this Section 18, the Executive relating to term “Specified Employee” shall have the tax treatment of any payment pursuant to this Agreement under meaning set forth in Code Section 409A and the corresponding provisions of any applicable State income tax lawssection 409A(a)(2)(B)(i).

Compliance with Code Section 409A. Notwithstanding anything herein 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 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 contrary, provisions of this Agreement shall be regarded as a separate payment and not one of a series of payments for purposes of Code Section 409A. It is intended to be interpreted that any amounts payable under this Agreement and operated so that the payment Company’s and the Executive’s exercise of the benefits set forth herein either shall either be exempt from the requirements of Section 409A of the Code authority or discretion hereunder shall comply with the requirements provisions 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), (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 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 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. 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 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 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 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. Reference to Code Section 409A is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any applicable State 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 tax lawsrecognized by the Executive in connection with the Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on him under or as a result of Code Section 409A in connection with the Agreement.

Compliance with Code Section 409A. Notwithstanding anything herein Any payment under this Section 8 is subject to the contrary, provisions of this Agreement is intended to be interpreted and operated so that the Section 8(i) (except for a 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 Disability or death under Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii8(e) 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 1.409A-1(h)(1), from the Company (his “Separation from Service”), the If Executive is a “specified employee,Specified Employee” as such term is defined of the Company for purposes of Code Section 409A at the time of a payment event in Treas. Reg. Sections 8(b) or (c) and if no exception from Code Section 1.409-1(i)409A applies in whole or in part, as determined from time to time by the Company, then such 409A Payment severance or other payments shall not be made to Executive by 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, Company on the first business day following the end of the six (6) seventh month period or following the date of the Executive’s deathSeparation from Service (the “409A Payment Date”). Should this Section 8(i) result in a delay of payments to Executive, whichever is earlierthe Company shall begin to make the payments as described in this Section 8, and provided that any amounts that would have been payable earlier but for the balance application of the 409A Payments, if anythis Section 8(i), shall 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 shall be payable in accordance with regular payroll timing and any COBRA premiums or subsidies shall be paid monthly. For purposes of this provision, the applicable payment schedule provided term Specified Employee has the meaning in this Code Section 4409A(a)(2)(B)(i), or any successor provision and the issued treasury regulations and rulings. The Executive hereby acknowledges that he has been advised to seek and has sought the advice “Separation from Service” or “Termination of a tax advisor Employment” means, 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 that is deemed to be subject to Code Section 409A, either (a) 10 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 no representations have been made 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 relating has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other 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 tax treatment employment relationship is deemed to terminate on the first day immediately following the expiration of any payment such six-month period. Whether a termination of employment has occurred will be determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to this Agreement under Code Section 409A and 409A. If the corresponding provisions payment is not subject to Code Section 409A, the term termination of any applicable State income tax laws.employment will be given its ordinary meaning. (j)

Compliance with Code Section 409A. Notwithstanding anything herein Any payment under this Section 7 is subject to the contrary, provisions of this Agreement is intended to be interpreted and operated so that the Section 7(h) (except for a 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 Disability or death under Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii7(d) or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”e), then, if on the date of the 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 If Executive is a “specified employee,Specified Employee” as such term is defined of the Company for purposes of Code Section 409A at the time of a payment event in Treas. Reg. Section 1.409-1(i)7(b) and if no exception from Code Section 409A applies in whole or in part, as determined from time to time by the Company, then such 409A Payment shall not severance or other payments will be made to Executive by 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, Company on the first business day following the end of the six (6) seventh month period or following the date of the Executive’s deathSeparation from Service (the “409A Payment Date”). Should this Section 7(h) result in a delay of payments to Executive, whichever is earlierthe Company will begin to make the payments as described in this Section 7, and provided that any amounts that would have been payable earlier but for the application of 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 409A Payments, if any, shall severance payments will be paid payable in accordance with regular payroll timing and the applicable payment schedule provided COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in this Code Section 4409A(a)(2)(B)(i), or any successor provision and the issued treasury regulations and rulings. The Executive hereby acknowledges that he has been advised to seek and has sought the advice “Separation from Service” or “Termination of a tax advisor Employment” means, 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 that is deemed to be subject to Code Section 409A, 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 no representations have been made 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 relating has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other 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 tax treatment employment relationship is deemed to terminate on the first day immediately following the expiration of any payment such six-month period. Whether a termination of employment has occurred will be determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to this Agreement under Code Section 409A and 409A. If the corresponding provisions payment is not subject to Code Section 409A, the term termination of any applicable State income tax lawsemployment will be given its ordinary meaning.

Compliance 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 Employment Agreement – ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ – EXECUTION COPY - August 2018 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), (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 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 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 his 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 his Separation from Service occurs if such release were executed and delivered and became irrevocable at the last possible date allowed under this Agreement, such 409A Payment will be paid no earlier than such later taxable year. In applying Section 409A to compensation paid pursuant to this Agreement, any right to a series of installment payments under this Agreement 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. 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. Notwithstanding anything herein 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 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 contrary, 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 to be interpreted that any amounts payable under this Agreement and operated so that the payment Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with the benefits set forth herein either shall either be exempt from the requirements provisions of Section 409A of the Code or shall comply with and the requirements of such provision; provided however that in no event shall Treasury regulations relating thereto so as not to subject the Company be liable 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 in order to bring this Agreement into compliance with Section 409A of the Code; and thereafter interpret its provisions in a manner that complies with 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 or the Executive with respect to any income recognized by the Executive in connection with the Agreement is guaranteed, and the Executive shall be responsible for any taxes, penalties and interest imposed on [him/her] under 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 as a “deferral result 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 Code 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 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 connection 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 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. 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), (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 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 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 release were executed and delivered and became irrevocable at the last possible date allowed under this Agreement, such 409A Payment will be paid no earlier than such later taxable year. In applying Section 409A to compensation paid pursuant to this Agreement, any right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. The Executive hereby acknowledges that he 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. 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), (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 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 Employment Agreement – ▇▇▇▇ ▇▇▇▇▇▇▇ (TM ID 546893) the Executive’s Separation from Service; or (ii) the date of his 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 release were executed and delivered and became irrevocable at the last possible date allowed under this Agreement, such 409A Payment will be paid no earlier than such later taxable year. In applying Section 409A to compensation paid pursuant to this Agreement, any right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. The Executive hereby acknowledges that he 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. 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), (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 1.409A-1(h)(11.409A­1(h)(1), from the Company (his “Separation from Service”), the Executive is a “specified employee,” as such term is defined in Treas. Reg. Section 1.409-1(i1.409‑1(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; 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 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 his 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 his Separation from Service occurs if such release were executed and delivered and became irrevocable at the last possible date allowed under this Agreement, such 409A Payment will be paid no earlier than such later taxable year. In applying Section 409A to compensation paid pursuant to this Agreement, any right to a series of installment payments under this Agreement 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 hereby agrees to bear and not the entire risk of any such adverse federal Company responsible for penalties and State tax consequences and penalty taxes interest that may be imposed 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 lawsis violated.

Compliance 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 payments and benefits set forth herein either shall will either be exempt from the requirements of Section 409A of the Code or shall will comply with the requirements of such provision; provided however that . Each payment of the Base Salary under Section 5(b) as severance (each, a “Severance Payment”) will be treated as a right to a series of separate payments as set forth in Treasury Regulation 1.409A-2(b)(2)(iii) and no event shall Severance Payment will be paid later than the Company be liable to last day of the second taxable year of Executive for or with respect to any taxes, penalties or interest following the taxable year of Executive in which may be imposed upon the Executive pursuant to Section 409A. occurs a “separation from service” as defined in Treasury Regulation 1.409A-1(h) (“Separation From Service”). To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii) or (f) 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 the 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(i1.409A-1(h), as determined from time to time by the Company, then such 409A Payment shall will 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 will 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 will 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 law5. 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 state income tax laws.

Compliance with Code Section 409A. Notwithstanding anything herein Any payment under this Section 8 is subject to the contrary, provisions of this Agreement is intended to be interpreted and operated so that the Section 8(i) (except for a 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 Disability or death under Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii8(e) 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 1.409A-1(h)(1), from the Company (his “Separation from Service”), the If Executive is a “specified employee,Specified Employee” as such term is defined of the Company for purposes of Code Section 409A at the time of a payment event in Treas. Reg. Sections 8(b) or (c) and if no exception from Code Section 1.409-1(i)409A applies in whole or in part, as determined from time to time by the Company, then such 409A Payment severance or other payments shall not be made to Executive by 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, Company on the first business day following the end of the six (6) seventh month period or following the date of the Executive’s deathSeparation from Service (the “409A Payment Date”). Should this Section 8(i) result in a delay of payments to Executive, whichever is earlierthe Company shall begin to make the payments as described in this Section 8, and provided that any amounts that would have been payable earlier but for the balance application of the 409A Payments, if anythis Section 8(i), shall 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 shall be payable in accordance with regular payroll timing and any COBRA premiums or subsidies shall be paid monthly. For purposes of this provision, the applicable payment schedule provided term Specified Employee has the meaning in this Code Section 4409A(a)(2)(B)(i), or any successor provision and the issued treasury regulations and rulings. The Executive hereby acknowledges that he has been advised to seek and has sought the advice “Separation from Service” or “Termination of a tax advisor Employment” means, 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 that is deemed to be subject to Code Section 409A, 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 no representations have been made 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 relating has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other 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 tax treatment employment relationship is deemed to terminate on the first day immediately following the expiration of any payment such six-month period. Whether a termination of employment has occurred will be determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to this Agreement under Code Section 409A and 409A. If the corresponding provisions payment is not subject to Code Section 409A, the term termination of any applicable State income tax lawsemployment will be given its ordinary meaning.

Compliance with Code Section 409A. Notwithstanding anything herein Any payment under this Agreement, including without limitation, this Section 8 is subject to the contraryprovisions of this Section 8(j) (except for a payment pursuant to death under Section 8(e)). If Executive is a “Specified Employee” of the Company for purposes of Code Section 409A at the time of a payment called for by Section 8(b) and if no exception from Code Section 409A applies in whole or in part, the severance or other payments shall be made to Executive by the Company on the first day of the seventh month following the date of Executive’s Separation from Service (the “409A Payment Date”). Should this Agreement Section 8(j) result in a delay of payments to Executive, the Company shall begin to make the payments as described in this Section 8, provided that any amounts that would have been payable earlier but for the application of this Section 8(j), shall be paid in lump-sum on the 409A Payment Date. The balance of the severance payments shall be payable in accordance with regular payroll timing. For purposes of this provision, the term Specified Employee has the meaning in Code Section 409A(a)(2)(B)(i), or 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 intended subject to Code Section 409A, either (a) termination of Executive’s employment with the Company, 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 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 for purposes of this Section 8(j) only 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 interpreted determined based on all of the facts and operated so that circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to Code Section 409A. If the payment is not subject to Code Section 409A, the term termination of the benefits set forth herein either employment will be given its ordinary meaning. This Agreement shall either be exempt from the requirements of comply with Section 409A of the Code or an exception thereto and each provision of the Agreement shall be interpreted, to the extent possible, to comply with the requirements of such provision; provided however that in no event shall Section 409A or an exception thereto. Nevertheless, the Company be liable to the Executive for does not and cannot guarantee any particular tax effect 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), (d)(i), (d)(iii) or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on the date treatment of the Executiveamounts due under this Agreement. Except for the Company’s “separation responsibility to withhold applicable income and employment taxes from service,” compensation paid or provided to Executive or as such term is defined otherwise provided in Treas. Reg. Section 1.409A-1(h)(1)7(a) and Section 8(h) above, 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 will not be made to responsible for the Executive earlier than the earlier payment of (i) six (6) months after the Executive’s Separation from Service; any applicable taxes on compensation paid 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 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. 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 . Neither the time nor schedule of any adverse tax consequences payment under this Agreement may be accelerated or penalty taxes under Code subject to further deferral except as permitted by Section 409A of the Code and the applicable State tax lawregulations. Executive hereby agrees does not have any right to bear make any election regarding the entire risk time or form of any such adverse federal and State tax consequences and penalty taxes in the event any payment due under this Agreement. Installment payments made pursuant to this Agreement is deemed shall be treated as separate payments for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii). With respect to be any payment constituting nonqualified deferred compensation subject to Code Section 409A: (A) all expenses or other reimbursements provided herein shall be payable in accordance with the Company’s policies in effect from time to time, and that no representations have been but in any event shall be made on or prior to the Executive relating last day of the taxable year following the taxable year in which such expenses were incurred by Executive; (B) no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year; and (C) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchanged for another benefit. For the tax treatment avoidance of any payment pursuant to doubt, this Agreement under Code Section 409A and the corresponding provisions of any applicable State income tax laws8(j) applies whether or not Executive’s employment has been terminated.

Compliance with Code Section 409A. Notwithstanding anything herein Any payment under this Section 7 is subject to the contrary, provisions of this Agreement is intended to be interpreted and operated so that the Section 7(h) (except for a 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 Disability or death under Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii7(d) or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”e), then, if on the date of the 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 If Executive is a “specified employee,Specified Employee” as such term is defined of the Company for purposes of Code Section 409A at the time of a payment event in Treas. Reg. Section 1.409-1(i)7(b) and if no exception from Code Section 409A applies in whole or in part, as determined from time to time by the Company, then such 409A Payment shall not severance or other payments will be made to Executive by 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, Company on the first business day following the end of the six (6) seventh month period or following the date of the Executive’s deathSeparation from Service (the “409A Payment Date”). Should this Section 7(h) result in a delay of payments to Executive, whichever is earlierthe Company will begin to make the payments as described in this Section 7, and provided that any amounts that would have been payable earlier but for the application of 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 409A Payments, if any, shall severance payments will be paid payable in accordance with regular payroll timing and the applicable payment schedule provided COBRA premiums will be paid monthly. For purposes of the provision, the term Specified Employee has the meaning in this Code Section 4409A(a)(2)(B)(i), or any successor provision and the issued treasury regulations and rulings. The Executive hereby acknowledges that he has been advised to seek and has sought the advice “Separation from Service” or “Termination of a tax advisor Employment” means, 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 that is deemed to be subject to Code Section 409A, 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 no representations have been made 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 relating has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other 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 tax treatment employment relationship is deemed to terminate on the first day immediately following the expiration of any payment such six-month period. Whether a termination of employment has occurred will be determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to this Agreement under Code Section 409A and 409A. If the corresponding provisions payment is not subject to Code Section 409A, the term termination of any applicable State income tax lawsemployment will be given its ordinary meaning.

Compliance with Code Section 409A. Notwithstanding anything herein to the contrary(a) This Agreement shall be construed, this Agreement is intended to be interpreted interpreted, and operated administered in a manner so that the payment of benefits, payments and reimbursements under this Agreement or the benefits set forth herein either shall either be exempt from plans, policies, or programs referred to in this Agreement that are nonqualified deferred compensation under Code Section 409A will satisfy the requirements of Code Section 409A and will not result in the imposition of the additional tax under 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. 409A. (b) To the extent that any amount payable pursuant benefits, payments, and reimbursements under this Agreement or the plans, policies, or programs referred to Subsections 4(b)in this Agreement are nonqualified deferred compensation under Code Section 409A, are paid or provided during the six (d)(i), (d)(iii6) or (f) constitutes a “deferral of compensation” subject to Section 409A (a “409A Payment”), then, if on months after the date of termination of employment and are paid or provided by virtue of the Executive’s “separation from service,” as such term is defined in Treas. Reg. Section 1.409A-1(h)(1)termination of employment, from the Company (his “Separation from Service”), shall take the following actions. If the Executive is a “specified employee,” as such term is defined in Treas. Reg. under Code 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) on the date of his deathtermination of employment, and to the extent not otherwise provided in this Agreement or the plans, policies, or programs referred to in this Agreement, the Company shall withhold these benefits, payments, and reimbursements from the date of termination of employment through the end of the sixth month after the date of termination of employment (the “Mandatory Holdback Period”). The 409A Payments under this Agreement that would otherwise be made during such period Company shall be aggregated pay and paid provide these benefits, payments, and reimbursements in one a single lump sum, without interest, sum on the first business day following the end of the six seventh (67th) month period after the date of termination of employment, or following if earlier, no later than thirty days after the date of the Executive’s deathdeath after the date of termination of employment (the “Mandatory Delayed Payment Date”). If the Company withholds any in-kind benefit or reimbursement during the Mandatory Holdback Period, whichever is earlier, and the balance Executive may pay the provider of the 409A Payments, if any, shall be paid in accordance with benefit or service and receive reimbursement on the applicable payment schedule provided in this Section 4. Mandatory Delayed Payment Date. (c) The Executive hereby acknowledges that he has been advised to seek avoid an additional tax on payments that may be payable under this Agreement and has sought the advice of a tax advisor with respect to the tax consequences to that constitute deferred compensation that is not exempt from Code Section 409A, the Executive of all payments pursuant must make a reasonable, good faith effort 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 collect any payment pursuant or benefit to which Executive believes Executive is entitled hereunder no later than ninety (90) days of the latest date upon which the payment could under this Agreement is deemed to be subject could have been timely paid pursuant 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 if not paid or provided, take further enforcement measures within 180 days after such latest date. (d) The provisions of this Section 16 control over any applicable State income tax lawsconflicting provisions of this Agreement, or the plans, policies, or programs referred to in this Agreement.

Compliance with Code Section 409A. (a) Notwithstanding anything herein in this Agreement to the contrary, the receipt of any benefits under this Agreement as a result of a termination of employment shall be subject to satisfaction of the 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 intended deemed to be interpreted and operated so a “specified employee” within the meaning of that term under Code Section 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 benefits set forth herein either shall either be exempt six (6) month period measured 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), (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 1.409A-1(h)(1§ 1.409A- 1(h)), 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 deathExecutive’s death (the “Delay Period”). The 409A Payments 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 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 or provided in accordance with the applicable normal payment schedule provided in this Section 4dates specified for them herein. The Executive hereby acknowledges To the extent that he has been advised to seek and has sought the advice of a tax advisor with respect foregoing applies to the tax consequences provision of any ongoing welfare benefits to Executive that would not be required to be 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 Luzerne shall pay Executive an amount equal to the amount of such premiums paid by Executive during the Delay Period within ten (10) days after the conclusion of all payments pursuant such Delay Period. (b) Except as otherwise expressly provided herein, to this Agreement, including the extent any adverse tax consequences expense reimbursement 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 other in-kind benefit is deemed determined to be subject to Code Section 409A, the amount of any such expenses eligible for reimbursement or in-kind benefits in one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits in any other taxable year (except under any lifetime limit applicable to expenses for medical care), in no event shall any expenses be reimbursed or in-kind benefits be provided after the last day of the calendar year following the calendar year in which Executive incurred such expenses or received such benefits, and that in no representations have been event shall any right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. (c) Any payments made pursuant to Sections 5 and 6, to the Executive relating extent of payments made from the date of termination through March 15th of the calendar year following such date, are intended to constitute separate payments for purposes of Treas. Reg. § 1.409A-2(b)(2) and thus payable pursuant to the tax treatment “short-term deferral” rule set forth in Treas. Reg. § 1.409A-1 (b)(4); to the extent such payments are made following said March 15th, they are intended to constitute separate payments for purposes of any payment Treas. Reg. §1 .409A-2(b)(2) made upon an involuntary termination from service and payable pursuant to this Agreement under Treas. Reg. §1 .409A-1(b)(9)(iii), to the maximum extent permitted by said provision. Notwithstanding the foregoing, if Luzerne determines that any other payments hereunder fail to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), the payment of such benefit shall be delayed to the minimum extent necessary so that such payments are not subject to the provisions of Code Section 409A and 409A(a)(1). (d) To the corresponding provisions of extent it is determined that any applicable State income tax lawsbenefits described in Section 6(b) are taxable to Executive, they are intended to be payable pursuant to Treas. Reg. §1.409A-l(b)(9)(v), to the maximum extent permitted by said provision.

Compliance with Code Section 409A. Notwithstanding anything herein Any payment under this Section 8 is subject to the contrary, provisions of this Agreement is intended to be interpreted and operated so that the Section 8(i) (except for a 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 Disability or death under Section 409A. To the extent that any amount payable pursuant to Subsections 4(b), (d)(i), (d)(iii8(e) 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 1.409A-1(h)(1), from the Company (his “Separation from Service”), the If Executive is a “specified employee,Specified Employee” as such term is defined of the Company for purposes of Code Section 409A at the time of a payment event in Treas. Reg. Sections 8(b) or (c) and if no exception from Code Section 1.409-1(i)409A applies in whole or in part, as determined from time to time by the Company, then such 409A Payment severance or other payments shall not be made to Executive by 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, Company on the first business day following the end of the six (6) seventh month period or following the date of the Executive’s deathSeparation from Service (the “409A Payment Date”). Should this Section 8(i) result in a delay of payments to Executive, whichever is earlierthe Company shall begin to make the payments as described in this Section 8, and provided that any amounts that would have been payable earlier but for the balance application of the 409A Payments, if anythis Section 8(i), shall 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 shall be payable in accordance with regular payroll timing and the applicable payment schedule provided COBRA premiums shall be paid monthly. For purposes of this provision, the term Specified Employee has the meaning in this Code Section 4409A(a)(2)(B)(i), or any successor provision and the issued treasury regulations and rulings. The Executive hereby acknowledges that he has been advised to seek and has sought the advice “Separation from Service” or “Termination of a tax advisor Employment” means, 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 that is deemed to be subject to Code Section 409A, 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 no representations have been made 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 relating has a “Separation from Service,” Executive’s employment relationship is treated as continuing while Executive is on military leave, sick leave, or other 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 tax treatment employment relationship is deemed to terminate on the first day immediately following the expiration of any payment such six-month period. Whether a termination of employment has occurred will be determined based on all of the facts and circumstances and in accordance with regulations issued by the United States Treasury Department pursuant to this Agreement under Code Section 409A and 409A. If the corresponding provisions payment is not subject to Code Section 409A, the term termination of any applicable State income tax lawsemployment will be given its ordinary meaning.