Common use of Deferred Compensation Clause in Contracts

Deferred Compensation. Notwithstanding anything to the contrary herein, the following provisions apply to the extent severance benefits provided herein are subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”). Severance benefits shall not commence until you have a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing of the severance benefits payments shall be delayed until the earlier of (i) six (6) months and one day after your separation from service and (ii) your death. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Employee’s termination of employment unless and until you have Employee has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Employee without causing Employee to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing 409A(a)(2)(B)(i) of the severance benefits Code, no Severance Benefit payments that are nonqualified deferred compensation subject to Section 409A and are triggered by a separation from service shall be delayed paid until the earlier later of (i) six (6) months and one day after your separation from service and (ii) your Employee’s Separation Date of, if earlier, Employee’s death. Upon All such payments will be accumulated and paid within thirty (30) days after the expiration of the applicable deferral such delay period. However, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It it is intended that each installment payments to Employee will be exempt from Section 409A under the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the payments provided hereunder constitute separate “payments” for purposes Treasury Regulations and not likely to be delayed pursuant to this provision. Notwithstanding any other payment schedule set forth in this Agreement, none of Treasury Regulation Section 1.409A-2(b)(2)(i)the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. To All amounts payable under the extent that Agreement will be subject to standard payroll taxes and deductions. Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeAgreement, the provision will Company shall not be read in such a manner so that all liable to Employee or any other person if payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined fail to be subject to exempt from, or compliant with, Section 409A of 409A. Employee is solely responsible for the Code, the amount tax consequences of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitpayments hereunder.

Deferred Compensation. Notwithstanding anything any provision of this Agreement to the contrary hereincontrary, this Agreement is intended to meet the following provisions apply to the extent severance benefits provided herein are subject to requirements of Section 409A of the Internal Revenue Code of 1986to the extent applicable, as amended (the parties intend to administer this Agreement in a manner that is consistent with those requirements or an exception thereto, and this Agreement shall be construed and interpreted in accordance with such intent. If and to the extent applicable, severance benefits shall be paid first under the “Code”) short-term deferral exception” and then under the regulations and other guidance thereunder “separation pay exception” of Section 409A, and any state law payments that are considered deferred compensation under Section 409A and that are paid to a “specified employee” (as defined in Section 409A of similar effect the Code) upon separation from service shall be subject to a six (collectively6) month delay, “if required by Section 409A. If required by Section 409A”, any amounts otherwise payable during the six (6) month period that commences on and follows the Executive’s Date of Termination shall be paid in one lump sum amount on the first business day following the six (6) month period following the Executive’s Date of Termination (or within thirty (30) days of the Executive’s death, if earlier). Severance benefits shall not commence until you have For purposes of Section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” for purposes (within the meaning of such term under Section 409A. 409A of the Code). Each installment of severance benefits is payment made under this Agreement shall be treated as a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), payment and the severance benefits are intended right to satisfy the exemptions from application a series of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing of the severance benefits installment payments shall be delayed until treated as the earlier right to a series of (i) six (6) months and one day after your separation from service and (ii) your deathseparate payments. Upon In no event shall the expiration Executive, directly or indirectly, designate the calendar year of the applicable deferral period, any payments which would have otherwise been made during that period (whether a payment. All reimbursements under this Agreement shall be provided in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended manner that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of this Agreement is ambiguous as to its compliance complies with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with if applicable. If required by regulations or other guidance issued under Section 409A of the Code. Except as otherwise expressly provided hereinCode or a court of competent jurisdiction, the provisions regarding payments hereunder shall be amended to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined provide for such payments to be subject to Section 409A made at the time allowed under such regulations, guidance or authority that most closely achieves the intent of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitthis Agreement.

Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing 409A(a)(2)(B)(i) of the severance benefits Code, no Severance Benefit payments that are nonqualified deferred compensation subject to Section 409A and are triggered by a separation from service shall be delayed paid until the earlier later of (i) six (6) months and one day after your separation from service and (ii) your Employee’s Separation Date of, if earlier, Employee’s death. Upon All such payments will be accumulated and paid within thirty (30) days after the expiration of the applicable deferral such delay period. However, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It it is intended that each installment payments to Employee will be exempt from Section 409A under the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the payments provided hereunder constitute separate “payments” for purposes Treasury Regulations and not likely to be delayed pursuant to this provision. Notwithstanding any other payment schedule set forth in this Agreement, none of Treasury Regulation Section 1.409A-2(b)(2)(i)the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. To All amounts payable under the extent that Agreement will be subject to standard payroll taxes and deductions. Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeAgreement, the provision will Company shall not be read in such a manner so that all liable to Employee or any other person if payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined fail to be subject to exempt from, or compliant with, Section 409A of 409A. Employee is solely responsible for the Code, the amount tax consequences of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitpayments hereunder.

Deferred Compensation. Notwithstanding anything in this Agreement to the contrary hereincontrary, the following provisions apply to the extent severance benefits provided herein are no amount deemed deferred compensation subject to Section 409A that is designated to be paid upon the Employee’s termination of employment shall be payable pursuant to this Agreement unless the Internal Revenue Code Employee’s termination of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”). Severance benefits shall not commence until you have employment constitutes a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and with the severance benefits are intended to satisfy Company within the exemptions from application meaning of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9(a “Separation from Service”). HoweverNotwithstanding anything in this Agreement to the contrary, if such exemptions are not available and you are, upon separation the Employee is deemed by the Company at the time of the Employee’s Separation from service, Service to be a “specified employee” for purposes of Section 409A, then, solely to the extent necessary delayed commencement of any portion of the benefits to which the Employee is entitled under this Agreement is required in order to avoid adverse personal tax consequences a prohibited distribution under Section 409A, the timing such portion of the severance Employee’s benefits payments shall not be delayed until provided to the Employee prior to the earlier of (iA) six the expiration of the six-month period measured from the date of the Employee’s Separation from Service with the Company or (6B) months and one day after your separation from service and (ii) your the date of the Employee’s death. Upon the first business day following the expiration of the applicable deferral Section 409A period, any all payments which would have otherwise been made during that period (whether deferred pursuant to the preceding sentence will be paid in a single lump-sum to the Employee (or in installments) in the absence of Employee’s estate or beneficiaries), and any remaining payments due to the Employee under this paragraph Agreement shall be paid to you or your beneficiary in one lump sum (without interest)as otherwise provided herein. Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for For purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code409A, the provision will be read in such a manner so that all Employee’s right to receive any installment payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to will be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any treated as a right to reimbursement or the provision receive a series of any in-kind benefit separate payments and, accordingly, each such installment payment shall at all times be subject to liquidation or exchange for another benefitconsidered a separate and distinct payment.

Deferred Compensation. Notwithstanding anything It is intended that all of the payments and benefits provided under this Agreement satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”). Severance benefits shall not commence until you have a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under of Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and that this Agreement will be construed to the greatest extent possible as consistent with those provisions. HoweverIf the Company (or, if such exemptions are not available applicable, the successor entity thereto) determines that any of the severance payments or benefits provided to Executive under this Agreement or otherwise (the “Severance Payments”) constitute “deferred compensation” under Code Section 409A and you are, upon separation from service, Executive is a “specified employee” for purposes (as such term is defined in Section 409A(a)(2)(B)(i)) of Section 409Athe Company or any successor entity thereto upon his separation from service, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A409A as a result of the payment of compensation upon his “separation from service”, the timing of the severance benefits payments Severance Payments shall be delayed until as follows: on the earlier to occur of (i) the date that is six (6) months and one day after your the date of the separation from service and or (ii) your death. Upon the expiration date of Executive’s death (such earlier date, the “Delayed Initial Payment Date”), the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the applicable deferral period, any payments which Severance Payments that Executive would otherwise have otherwise received through the Delayed Initial Payment Date if the commencement of the payment of the Severance Payments had not been made during that period (whether in a single sum or in installments) in the absence of delayed pursuant to this paragraph shall be paid to you or your beneficiary and (B) commence paying the balance of the Severance Payments in one lump sum (without interest)accordance with the applicable payment schedules set forth above. Any termination of your employment is All payments hereunder are intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the separate payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Regulations Section 1.409A-2(b)(2)(i1.409A-2(b)(2). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

Deferred Compensation. Notwithstanding anything It is intended that (i) each installment of any amounts or benefits payable under Section 8 of this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i) (and each such installment is hereby designated as separate for such purpose), (ii) all payments of any such amounts or benefits satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance , as provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii); and (iii) any such amounts or benefits shall not commence until you have a “separation consisting of premiums payable under COBRA also satisfy, to the greatest extent possible, the exemption from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9Section 1.409A-1(b)(9)(v). However, if any such exemptions amounts or benefits constitute “deferred compensation” under Section 409A and if you are not available and you are, upon separation from service, a “specified employee” for purposes of the Company, as such term is defined in Section 409A409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of the severance benefits any such benefit payments as to which you are entitled shall be delayed until as follows: on the earlier to occur of (ia) the date that is six (6) months and one (1) day after your separation from service and (iib) the date of your death. Upon death (such applicable date, the expiration “Delayed Initial Payment Date”), the Company shall (1) pay you a lump sum amount equal to the sum of the benefit payments that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this Section 10 and (2) commence paying the balance, if any, of the benefits in accordance with the applicable deferral periodpayment schedule. This Agreement, any payments which would have otherwise been made during that period (whether together with the Confidentiality Agreement, sets for the entire agreement and understanding between you and the Company relating to your employment and supersedes all prior agreements, understandings and discussions between you and the Company, including without limitation the Employment Agreement between you and the Company dated January 3, 2006. For the avoidance of doubt, the Confidentiality Agreement remains in full force and effect, in accordance with its terms. This letter may not be modified or amended except by a single sum or in installments) in written agreement, signed by the absence Chief Executive Officer of this paragraph shall be paid the Company, although the Company reserves the right to you or modify unilaterally your beneficiary in one lump sum (without interest). Any termination compensation, benefits, job title and duties, reporting relationships and other terms of your employment. We are pleased to offer you these employment is intended to constitute a “separation from service” terms. Sincerely, /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx President and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.CEO

Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Executive is a “specified employee” for purposes within the meaning of Section 409A409A(a)(2)(B)(i) of the Code, then, solely any Severance Benefit payments that are triggered by a separation from service shall be accelerated to the minimum extent necessary to avoid adverse personal tax consequences under Section 409A, so that (a) the timing of the severance benefits payments shall be delayed until the earlier lesser of (iy) the total cash severance payment amount, or (z) six (6) months and one day after your separation from service of such installment payments are paid no later than March 15 of the calendar year following such termination, and (iib) your death. Upon all amounts paid pursuant to the expiration foregoing clause (a) will constitute separate payments for purposes of Section 1.409A-2(b)(2) of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” Treasury Regulations and thus will be determined consistent with payable pursuant to the rules relating to a “separation from serviceshort-term deferral” as such term is defined rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulation Section 1.409A-1Regulations. It is intended that each installment if Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the payments provided hereunder constitute separate “payments” for purposes Code at the time of Treasury Regulation Section 1.409A-2(b)(2)(i). To such separation from service the extent that any foregoing provision of this Agreement is ambiguous as to its shall result in compliance with the requirements of Section 409A 409A(a)(2)(B)(i) of the CodeCode since payments to Executive will either be payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations or will not be paid until at least 6 months after separation from service. Notwithstanding any other payment schedule set forth in this Agreement, none of the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. On the first regular payroll pay day following the effective date of the Separation Date Release of all claims, the provision Company will be read pay Executive the Severance Benefits Executive would otherwise have received under the Agreement on or prior to such date but for the delay in such a manner so that all payments hereunder comply with Section 409A payment related to the effectiveness of the Coderelease of claims, with the balance of the Severance Benefits being paid as originally scheduled. Except as otherwise expressly provided herein, to All amounts payable under the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to will be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, standard payroll taxes and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitdeductions.”

Deferred Compensation. Notwithstanding anything It is intended that (i) each installment of any amounts or benefits payable under Section 10 of this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i) (and each such installment is hereby designated as separate for such purpose), (ii) all payments of any such amounts or benefits satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance , as provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii); and (iii) any such amounts or benefits shall not commence until you have a “separation consisting of premiums payable under COBRA also satisfy, to the greatest extent possible, the exemption from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9Section 1.409A-1(b)(9)(v). However, if any such exemptions amounts or benefits constitute “deferred compensation” under Section 409A and if you are not available and you are, upon separation from service, a “specified employee” for purposes of the Company, as such term is defined in Section 409A409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of the severance benefits any such benefit payments as to which you are entitled shall be delayed until as follows: on the earlier to occur of (ia) the date that is six (6) months and one (1) day after your separation from service and (iib) the date of your death. Upon death (such applicable date, the expiration “Delayed Initial Payment Date”), the Company shall (1) pay you a lump sum amount equal to the sum of the benefit payments that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this Section 12 and (2) commence paying the balance, if any, of the benefits in accordance with the applicable deferral periodpayment schedule. This Agreement, together with the Confidentiality Agreement, sets for the entire agreement and understanding between you and the Company relating to your employment and supersedes all prior agreements, understandings and discussions between you and the Company. This letter may not be modified or amended except by a written agreement, signed by the Chief Executive Officer of the Company, although the Company reserves the right to modify unilaterally your compensation, benefits, job title and duties, reporting relationships and other terms of your employment. Xxxxxxx, we are pleased to offer you these employment terms and would appreciate your acceptance by signing and returning this document to me no later than the end of day Monday June 30, 2014. Sincerely, /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx President and CEO UNDERSTOOD, ACCEPTED AND AGREED: T. Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx Signature 6/27/2014 Date EXHIBIT A RELEASE AGREEMENT In exchange for the General Severance Benefits, the Change of Control Severance Benefits, and/or the Full Acceleration, as applicable, to be provided to me pursuant to the Employment Agreement dated June 27, 2014 (the “Agreement”) between me and Carbylan Therapeutics, Inc. (the “Company”), I hereby provide the following release of claims (the “Release”). In exchange for the severance pay and benefits provided to me under the Agreement, to which I acknowledge I would not otherwise be entitled, and for other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, I hereby generally and completely release the Company, its parent and subsidiary entities, and their respective directors, officers, employees, shareholders, stockholders, partners, agents, attorneys, predecessors, successors, insurers, employee benefit plans, affiliates, and assigns (collectively, the “Released Parties”) of and from any and all claims, liabilities and obligations, both known and unknown, arising out of or in any way related to events, acts, conduct, or omissions occurring at any time prior to or at the time that I sign this Release (collectively, the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims arising out of or in any way related to my employment with the Company (or its successor) or the termination of that employment; (2) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership or equity interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing (including, but not limited to, any payments which would have otherwise been made during that period claims based on or arising from the Agreement); (whether 4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in a single sum violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in installmentsEmployment Act (as amended) (“ADEA”), the federal Family and Medical Leave Act (as amended) (“FMLA”), the California Family Rights Act (“CFRA”), the California Labor Code (as amended), and the California Fair Employment and Housing Act (as amended). Notwithstanding the foregoing, the following are not included in the absence Released Claims (the “Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to any written indemnification agreement with the Company to which I am a party, the charter, bylaws, or operating agreements of the Company, applicable law, or applicable directors and officers liability insurance; (2) any rights or claims which are not waivable as a matter of law; and (3) any claims for breach of the Agreement arising after the date that I sign this Release. In addition, nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, the California Department of Fair Employment and Housing, or any other government agency, except that I acknowledge and agree that I am hereby waiving my right to any monetary benefits in connection with any such claim, charge or proceeding. I represent that I have no lawsuits, claims or actions pending in my name, or on behalf of any other person or entity, against any of the Released Parties. The following paragraph shall apply to me only if I am forty (40) years old or older as of the date that I sign this Release: I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA, and that the consideration given for the waiver and release in the preceding paragraph is in addition to anything of value to which I am already entitled. I further acknowledge that I have been advised by this writing that: (1) my waiver and release do not apply to any rights or claims that may arise after the date I sign this Release; (2) I have been advised to consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so) and I have had sufficient opportunity to do so; (3) I have twenty-one (21) days to consider this Release (although I may choose voluntarily to sign it earlier); (4) I have seven (7) days following the date I sign this Release to revoke it by providing written notice of revocation to the Company’s Board of Directors; and (5) this Release will not be effective until the date upon which the revocation period has expired, which will be the eighth calendar day after the date I sign it if I do not revoke it (such date, the “Effective Date”). The following paragraph shall apply to me only if I am less than forty (40) years old as of the date that I sign this Release: I understand that I have fourteen (14) days to consider this Release (although I may choose voluntarily to sign it earlier), the Release will become effective as of the date that I sign it (such date, the “Effective Date”), and I do not have the right to revoke this Release after signing it. I UNDERSTAND THAT THIS RELEASE AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law or legal principle of similar effect in any jurisdiction with respect to my release of claims herein, including but not limited to the release of unknown and unsuspected claims. I hereby represent that I have been paid all compensation owed and for all time worked, I have received all the leave and leave benefits and protections for which I am eligible, pursuant to you FMLA, CFRA, any Company policy or your beneficiary applicable law, and I have not suffered any on-the-job injury or illness for which I have not already filed a workers’ compensation claim. I further agree: (1) not to disparage the Company, or any of the other Released Parties, in one lump sum any manner likely to be harmful to its or their business, business reputation, or personal reputation (although I may respond accurately and fully to any question, inquiry or request for information as required by legal process); (2) not to voluntarily (except in response to legal compulsion) assist any third party in bringing or pursuing any proposed or pending litigation, arbitration, administrative claim or other formal proceeding against the Company, its parent or subsidiary entities, affiliates, officers, directors, employees or agents; and (3) to cooperate fully with the Company, by voluntarily (without interest). Any termination of your employment is intended to constitute a “separation from service” legal compulsion) providing accurate and will be determined consistent complete information, in connection with the rules Company’s actual or contemplated defense, prosecution, or investigation of any claims or demands by or against third parties, or other matters, arising from events, acts, or failures to act that occurred during the period of my employment by the Company or any successor thereto. I understand that, upon the Effective Date, this Release will take effect as a legally binding agreement between me and the Company. This Release sets for the entire agreement and understanding between the Company and me relating to the matters set forth herein and supersedes all prior and contemporaneous agreements, understandings and discussions concerning such matters, whether express or implied. This Release may not be modified or amended except by a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment written agreement, signed by the Chief Executive Officer of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i)Company and me. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.By: /s/ Xxxxxxx Xxxxx [Name]

Deferred Compensation. Notwithstanding anything It is intended that (i) each installment of any amounts or benefits payable under Section 10 of this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i) (and each such installment is hereby designated as separate for such purpose), (ii) all payments of any such amounts or benefits satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance , as provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii); and (iii) any such amounts or benefits shall not commence until you have a “separation consisting of premiums payable under COBRA also satisfy, to the greatest extent possible, the exemption from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9Section 1.409A-1(b)(9)(v). However, if any such exemptions amounts or benefits constitute “deferred compensation” under Section 409A and if you are not available and you are, upon separation from service, a “specified employee” for purposes of the Company, as such term is defined in Section 409A409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of the severance benefits any such benefit payments as to which you are entitled shall be delayed until as follows: on the earlier to occur of (ia) the date that is six (6) months and one (1) day after your separation from service and (iib) the date of your death. Upon death (such applicable date, the expiration “Delayed Initial Payment Date”), the Company shall (1) pay you a lump sum amount equal to the sum of the benefit payments that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this Section 12 and (2) commence paying the balance, if any, of the benefits in accordance with the applicable deferral periodpayment schedule. This Agreement, together with the Confidentiality Agreement, sets for the entire agreement and understanding between you and the Company relating to your employment and supersedes all prior agreements, understandings and discussions between you and the Company. This letter may not be modified or amended except by a written agreement, signed by the Chief Executive Officer of the Company, although the Company reserves the right to modify unilaterally your compensation, benefits, job title and duties, reporting relationships and other terms of your employment. We are pleased to offer you these employment terms. Sincerely, /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx President and CEO UNDERSTOOD, ACCEPTED AND AGREED: Xxxxxx Xxxxx /s/ Xxxxxx Xxxxx Signature April 21, 2014 Date EXHIBIT A RELEASE AGREEMENT In exchange for the General Severance Benefits, the Change of Control Severance Benefits, and/or the Full Acceleration, as applicable, to be provided to me pursuant to the Employment Agreement dated April 21, 2014 (the “Agreement”) between me and Carbylan Therapeutics, Inc. (the “Company”), I hereby provide the following release of claims (the “Release”). In exchange for the severance pay and benefits provided to me under the Agreement, to which I acknowledge I would not otherwise be entitled, and for other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, I hereby generally and completely release the Company, its parent and subsidiary entities, and their respective directors, officers, employees, shareholders, stockholders, partners, agents, attorneys, predecessors, successors, insurers, employee benefit plans, affiliates, and assigns (collectively, the “Released Parties”) of and from any and all claims, liabilities and obligations, both known and unknown, arising out of or in any way related to events, acts, conduct, or omissions occurring at any time prior to or at the time that I sign this Release (collectively, the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims arising out of or in any way related to my employment with the Company (or its successor) or the termination of that employment; (2) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership or equity interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing (including, but not limited to, any payments which would have otherwise been made during that period claims based on or arising from the Agreement); (whether 4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in a single sum violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in installmentsEmployment Act (as amended) (“ADEA”), the federal Family and Medical Leave Act (as amended) (“FMLA”), the California Family Rights Act (“CFRA”), the California Labor Code (as amended), and the California Fair Employment and Housing Act (as amended). Notwithstanding the foregoing, the following are not included in the absence Released Claims (the “Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to any written indemnification agreement with the Company to which I am a party, the charter, bylaws, or operating agreements of the Company, applicable law, or applicable directors and officers liability insurance; (2) any rights or claims which are not waivable as a matter of law; and (3) any claims for breach of the Agreement arising after the date that I sign this Release. In addition, nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, the California Department of Fair Employment and Housing, or any other government agency, except that I acknowledge and agree that I am hereby waiving my right to any monetary benefits in connection with any such claim, charge or proceeding. I represent that I have no lawsuits, claims or actions pending in my name, or on behalf of any other person or entity, against any of the Released Parties. The following paragraph shall apply to me only if I am forty (40) years old or older as of the date that I sign this Release: I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA, and that the consideration given for the waiver and release in the preceding paragraph is in addition to anything of value to which I am already entitled. I further acknowledge that I have been advised by this writing that: (1) my waiver and release do not apply to any rights or claims that may arise after the date I sign this Release; (2) I have been advised to consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so) and I have had sufficient opportunity to do so; (3) I have twenty-one (21) days to consider this Release (although I may choose voluntarily to sign it earlier); (4) I have seven (7) days following the date I sign this Release to revoke it by providing written notice of revocation to the Company’s Board of Directors; and (5) this Release will not be effective until the date upon which the revocation period has expired, which will be the eighth calendar day after the date I sign it if I do not revoke it (such date, the “Effective Date”). The following paragraph shall apply to me only if I am less than forty (40) years old as of the date that I sign this Release: I understand that I have fourteen (14) days to consider this Release (although I may choose voluntarily to sign it earlier), the Release will become effective as of the date that I sign it (such date, the “Effective Date”), and I do not have the right to revoke this Release after signing it. I UNDERSTAND THAT THIS RELEASE AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law or legal principle of similar effect in any jurisdiction with respect to my release of claims herein, including but not limited to the release of unknown and unsuspected claims. I hereby represent that I have been paid all compensation owed and for all time worked, I have received all the leave and leave benefits and protections for which I am eligible, pursuant to you FMLA, CFRA, any Company policy or your beneficiary applicable law, and I have not suffered any on-the-job injury or illness for which I have not already filed a workers’ compensation claim. I further agree: (1) not to disparage the Company, or any of the other Released Parties, in one lump sum any manner likely to be harmful to its or their business, business reputation, or personal reputation (although I may respond accurately and fully to any question, inquiry or request for information as required by legal process); (2) not to voluntarily (except in response to legal compulsion) assist any third party in bringing or pursuing any proposed or pending litigation, arbitration, administrative claim or other formal proceeding against the Company, its parent or subsidiary entities, affiliates, officers, directors, employees or agents; and (3) to cooperate fully with the Company, by voluntarily (without interest). Any termination of your employment is intended to constitute a “separation from service” legal compulsion) providing accurate and will be determined consistent complete information, in connection with the rules Company’s actual or contemplated defense, prosecution, or investigation of any claims or demands by or against third parties, or other matters, arising from events, acts, or failures to act that occurred during the period of my employment by the Company or any successor thereto. I understand that, upon the Effective Date, this Release will take effect as a legally binding agreement between me and the Company. This Release sets for the entire agreement and understanding between the Company and me relating to the matters set forth herein and supersedes all prior and contemporaneous agreements, understandings and discussions concerning such matters, whether express or implied. This Release may not be modified or amended except by a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment written agreement, signed by the Chief Executive Officer of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i)Company and me. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.By: /s/ Xxxxxx Xxxxx [Name]

Deferred Compensation. Notwithstanding anything It is intended that (i) each installment of any amounts or benefits payable under Section 8 of this Agreement be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i) (and each such installment is hereby designated as separate for such purpose), (ii) all payments of any such amounts or benefits satisfy, to the contrary hereingreatest extent possible, the following provisions apply to exemptions from the extent severance benefits provided herein are subject to application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance , as provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii); and (iii) any such amounts or benefits shall not commence until you have a “separation consisting of premiums payable under COBRA also satisfy, to the greatest extent possible, the exemption from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9Section 1.409A-1(b)(9)(v). However, if any such exemptions amounts or benefits constitute “deferred compensation” under Section 409A and if you are not available and you are, upon separation from service, a “specified employee” for purposes of the Company, as such term is defined in Section 409A409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of the severance benefits any such benefit payments as to which you are entitled shall be delayed until as follows: on the earlier to occur of (ia) the date that is six (6) months and one (1) day after your separation from service and (iib) the date of your death. Upon death (such applicable date, the expiration “Delayed Initial Payment Date”), the Company shall (1) pay you a lump sum amount equal to the sum of the benefit payments that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this Section 10 and (2) commence paying the balance, if any, of the benefits in accordance with the applicable deferral periodpayment schedule. This Agreement, any payments which would have otherwise been made during that period (whether together with the Confidentiality Agreement, sets for the entire agreement and understanding between you and the Company relating to your employment and supersedes all prior agreements, understandings and discussions between you and the Company, including without limitation the Employment Agreement between you and the Company dated February 9, 2007. For the avoidance of doubt, the Confidentiality Agreement remains in full force and effect, in accordance with its terms. This letter may not be modified or amended except by a single sum or in installments) in written agreement, signed by the absence Chief Executive Officer of this paragraph shall be paid the Company, although the Company reserves the right to you or modify unilaterally your beneficiary in one lump sum (without interest). Any termination compensation, benefits, job title and duties, reporting relationships and other terms of your employment. We are pleased to offer you these employment is intended to constitute a “separation from service” terms. Sincerely, /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx President and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.CEO

Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the "Severance Benefits") that constitute "deferred compensation" within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “"Code”") and the regulations and other guidance thereunder and any state law of similar effect (collectively, “collectively "Section 409A”). Severance benefits ") shall not commence in connection with Employee's termination of employment unless and until you have Employee has also incurred a “"separation from service” " (as such term is defined in Treasury Regulation Section 1.409A-1(h) ("Separation From Service"), unless the Company reasonably determines that such amounts may be provided to Employee without causing Employee to incur the additional 20% tax under Section 409A. It is intended that each installment of the Severance Benefits payments provided for in this Agreement is a separate "payment" for purposes of Treasury Regulation Section 409A. Each installment 1.409A2(b)(2)(i). For the avoidance of severance benefits doubt, it is a separate “payment” for purposes intended that payments of Treas. Reg. Section 1.409A-2(b)(2)(i)the Severance Benefits set forth in this Agreement satisfy, and to the severance benefits are intended to satisfy greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). HoweverIf Employee is a "specified employee" within the meaning of 409A(a)(2)(B)(i) of the Code, if such exemptions any Severance Benefit payments that are not available and you are, upon triggered by a separation from service, a “specified employee” for purposes of Section 409A, then, solely service shall be accelerated to the minimum extent necessary to avoid adverse personal tax consequences under Section 409A, so that (a) the timing of the severance benefits payments shall be delayed until the earlier lesser of (iy) the total cash severance payment amount, or (z) six (6) months and one day after your separation from service of such installment payments are paid no later than March 15 of the calendar year following such termination, and (iib) your death. Upon all amounts paid pursuant to the expiration foregoing clause (a) will constitute separate payments for purposes of Section 1.409A-2(b)(2) of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” Treasury Regulations and thus will be determined consistent with payable pursuant to the rules relating to a “separation from service” as such "short-term is defined deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulation Section 1.409A-1Regulations. It is intended that each installment if Employee is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code at the time of such separation from service the foregoing provision shall result in compliance with the requirements of Section 409A(a)(2)(B)(i) of the Code since payments to Employee will either be payable pursuant to the "short-term deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations or will not be paid until at least 6 months after separation from service. Notwithstanding any other payment schedule set forth in this Agreement, none of the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. On the first regular payroll pay day following the effective date of the Separation Date Release of all claims, the Company will pay Employee the Severance Benefits Employee would otherwise have received under the Agreement on or prior to such date but for the delay in payment related to the effectiveness of the release of claims, with the balance of the Severance Benefits being paid as originally scheduled. All amounts payable under the Agreement will be subject to standard payroll taxes and deductions. In the event that the payments or other benefits provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of in this Agreement is ambiguous as or otherwise payable to its compliance with Employee (i) constitute "parachute payments" within the meaning of Section 409A 280G of the Code, and (ii) would be subject to the provision will excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then Employee's benefits under this Agreement shall be read either (a) delivered in full, or (b) delivered to such a manner so lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all payments hereunder comply with or some portion of such benefits may be taxable under Section 409A 4999 of the Code. Except as otherwise expressly provided herein, If a reduction in payments or benefits constituting "parachute payments" is necessary pursuant to the extent any expense reimbursement or foregoing provision, reduction shall occur in the provision following order: reduction of any in-kind benefit under this Agreement cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. If acceleration of vesting of stock award compensation is determined to be subject to Section 409A reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code, the amount date of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day grant of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitEmployee's stock awards.

Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing 409A(a)(2)(B)(i) of the severance benefits Code, no Severance Benefit payments that are nonqualified deferred compensation subject to Section 409A and are triggered by a separation from service shall be delayed paid until the earlier later of (i) six (6) months and one day after your separation from service and (ii) your Employee’s Separation Date of, if earlier, Employee’s death. Upon All such payments will be accumulated and paid within thirty (30) days after the expiration of the applicable deferral such delay period. However, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It it is intended that each installment payments to Employee will be exempt from Section 409A under the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the payments provided hereunder constitute separate “payments” for purposes Treasury Regulations and not likely to be delayed pursuant to this provision. Notwithstanding any other payment schedule set forth in this Agreement, none of Treasury Regulation Section 1.409A-2(b)(2)(i)the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. To All amounts payable under the extent that Agreement will be subject to standard payroll taxes and deductions. Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeAgreement, the provision will Company shall not be read in such a manner so that all liable to Employee or any other person if payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined fail to be subject to exempt from, or compliant with, Section 409A of 409A. Employee is solely responsible for the Code, the amount tax consequences of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitpayments hereunder.

Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Executive is a “specified employee” for purposes within the meaning of Section 409A409A(a)(2)(B)(i) of the Code, then, solely any Severance Benefit payments that are triggered by a separation from service shall be accelerated to the minimum extent necessary to avoid adverse personal tax consequences under Section 409A, so that (a) the timing of the severance benefits payments shall be delayed until the earlier lesser of (iy) the total cash severance payment amount, or (z) six (6) months and one day after your separation from service of such installment payments are paid no later than March 15 of the calendar year following such termination, and (iib) your death. Upon all amounts paid pursuant to the expiration foregoing clause (a) will constitute separate payments for purposes of Section 1.409A-2(b)(2) of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” Treasury Regulations and thus will be determined consistent with payable pursuant to the rules relating to a “separation from serviceshort-term deferral” as such term is defined rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulation Section 1.409A-1Regulations. It is intended that each installment if Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the payments provided hereunder constitute separate “payments” for purposes Code at the time of Treasury Regulation Section 1.409A-2(b)(2)(i). To such separation from service the extent that any foregoing provision of this Agreement is ambiguous as to its shall result in compliance with the requirements of Section 409A 409A(a)(2)(B)(i) of the CodeCode since payments to Executive will either be payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations or will not be paid until at least 6 months after separation from service. Notwithstanding any other payment schedule set forth in this Agreement, none of the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. On the first regular payroll pay day following the effective date of the Separation Date Release of all claims, the provision Company will be read pay Executive the Severance Benefits Executive would otherwise have received under the Agreement on or prior to such date but for the delay in such a manner so that all payments hereunder comply with Section 409A payment related to the effectiveness of the Coderelease of claims, with the balance of the Severance Benefits being paid as originally scheduled. Except as otherwise expressly provided herein, to All amounts payable under the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to will be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, standard payroll taxes and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitdeductions.

Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Employee’s termination of employment unless and until you have Employee has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Employee without causing Employee to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of TreasTreasury Regulation Section 1.409A2(b)(2)(i). Reg. Section 1.409A-2(b)(2)(i)For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A409A(a)(2)(B)(i) of the Code, then, solely any Severance Benefit payments that are triggered by a separation from service shall be accelerated to the minimum extent necessary to avoid adverse personal tax consequences under Section 409A, so that (a) the timing of the severance benefits payments shall be delayed until the earlier lesser of (iy) the total cash severance payment amount, or (z) six (6) months and one day after your separation from service of such installment payments are paid no later than March 15 of the calendar year following such termination, and (iib) your death. Upon all amounts paid pursuant to the expiration foregoing clause (a) will constitute separate payments for purposes of Section 1.409A-2(b)(2) of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” Treasury Regulations and thus will be determined consistent with payable pursuant to the rules relating to a “separation from serviceshort-term deferral” as such term is defined rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulation Section 1.409A-1Regulations. It is intended that each installment if Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code at the time of such separation from service the foregoing provision shall result in compliance with the requirements of Section 409A(a)(2)(B)(i) of the Code since payments to Employee will either be payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations or will not be paid until at least 6 months after separation from service. Notwithstanding any other payment schedule set forth in this Agreement, none of the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. On the first regular payroll pay day following the effective date of the Separation Date Release of all claims, the Company will pay Employee the Severance Benefits Employee would otherwise have received under the Agreement on or prior to such date but for the delay in payment related to the effectiveness of the release of claims, with the balance of the Severance Benefits being paid as originally scheduled. All amounts payable under the Agreement will be subject to standard payroll taxes and deductions. In the event that the payments or other benefits provided hereunder for in this Agreement or otherwise payable to Employee (i) constitute separate “parachute payments” for purposes within the meaning of Treasury Regulation Section 1.409A-2(b)(2)(i). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A 280G of the Code, and (ii) would be subject to the provision will excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s benefits under this Agreement shall be read either (a) delivered in full, or (b) delivered to such a manner so lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all payments hereunder comply with or some portion of such benefits may be taxable under Section 409A 4999 of the Code. Except as otherwise expressly provided herein, If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the extent any expense reimbursement or foregoing provision, reduction shall occur in the provision following order: reduction of any in-kind benefit under this Agreement cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. If acceleration of vesting of stock award compensation is determined to be subject to Section 409A reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code, the amount date of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day grant of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitEmployee’s stock awards.

Deferred Compensation. Notwithstanding anything to the contrary set forth herein, the following provisions apply to the extent severance any payments and benefits provided herein are subject to under this Agreement (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively, collectively “Section 409A”). Severance benefits ) shall not commence in connection with Executive’s termination of employment unless and until you have Executive has also incurred a “separation from service” for purposes of (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Executive without causing Executive to incur the additional 20% tax under Section 409A. Each It is intended that each installment of severance benefits the Severance Benefits payments provided for in this Agreement is a separate “payment” for purposes of Treas. Reg. Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, and it is intended that payments of the severance benefits are intended Severance Benefits set forth in this Agreement satisfy, to satisfy the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and you are, upon separation from service, If Employee is a “specified employee” for purposes within the meaning of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing 409A(a)(2)(B)(i) of the severance benefits Code, no Severance Benefit payments that are nonqualified deferred compensation subject to Section 409A and are triggered by a separation from service shall be delayed paid until the earlier later of (i) six (6) months and one day after your separation from service and (ii) your Employee’s Separation Date or Employee’s death. Upon All such payments will be accumulated and paid within thirty (30) days after the expiration of the applicable deferral such delay period. However, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It it is intended that each installment payments to Employee will be exempt from Section 409A under the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the payments provided hereunder constitute separate “payments” for purposes Treasury Regulations and not likely to be delayed pursuant to this provision. Notwithstanding any other payment schedule set forth in this Agreement, none of Treasury Regulation Section 1.409A-2(b)(2)(i)the Severance Benefits will be paid or otherwise delivered prior to the effective date of the Separation Date Release of all claims set forth as Exhibit B hereto. To All amounts payable under the extent that Agreement will be subject to standard payroll taxes and deductions. Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the CodeAgreement, the provision will Company shall not be read in such a manner so that all liable to Employee or any other person if payments hereunder comply with Section 409A of the Code. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined fail to be subject to exempt from, or compliant with, Section 409A of 409A. Employee is solely responsible for the Code, the amount tax consequences of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefitpayments hereunder.