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

Internal Revenue Code Section 409A. (i) Notwithstanding any provision to the contrary herein, no Deferred Compensation Separation Payments (as defined below) that becomes payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on the date of Employee’s termination (other than a termination due to death), then the severance payable to Employee, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following Employee’s termination of employment, shall be delayed until the first payroll date that occurs on or after the date that is six (6) months and one (1) day after the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee dies following his termination but prior to the six (6) month anniversary of his termination, then any Payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in this Agreement shall be made or provided in accordance with the requirements of Section 409A, including: (i) the amount of any such expense reimbursement or in-kind benefit provided during a taxable year of the Employee shall not affect any expenses eligible for reimbursement in any other taxable year; (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or payment. (iii) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.

Internal Revenue Code Section 409A. (i) a. Notwithstanding any provision anything to the contrary hereinin this Agreement, no “Deferred Compensation Separation Payments Benefits” (as defined below) that becomes will become payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes until Employee has a “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and any the final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on at the date time of Employee’s termination (other than a termination due to death), then and the severance payable to Employee, if any, under pursuant to this Agreement, when considered together with any other severance payments or separation benefits that benefits, are considered deferred compensation under Section 409A (together together, the “Deferred Compensation Separation PaymentsBenefits”) ), such Deferred Compensation Separation Payments that are otherwise payable within the first six (6) months following Employee’s termination of employment, shall be delayed until employment will become payable on the first payroll date that occurs on or after the date that is six (6) months and one (1) day after following the date of the termination, when they shall be paid in full arrearsEmployee’s termination of employment. All subsequent Deferred Compensation Separation PaymentsBenefits, if any, shall will be paid payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee dies following his termination but prior to the six (6) month anniversary of his termination, then any Payments payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Payments Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) b. Any taxable reimbursements and/or taxable in-kind benefits provided in amount paid under this Agreement shall be made or provided in accordance with that satisfies the requirements of the “short-term deferral” rule set forth in Section 409A1.409A-1(b)(4) of the Treasury Regulations shall not constitute Deferred Compensation Separation Benefits for purposes of Section 26(a) above. c. Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the “Section 409A Limit” (as defined below) shall not constitute Deferred Compensation Separation Benefits for purposes of Section 26(a) above. For purposes of this Section 26(c), including“Section 409A Limit” will mean the lesser of two (2) times: (i) Employee’s annualized compensation based upon the amount annual rate of any such expense reimbursement or in-kind benefit provided pay paid to Employee during a the Employee’s taxable year preceding the Employee’s taxable year of the Employee shall not affect any expenses eligible for reimbursement in any other taxable yearEmployee’s termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1); or (ii) the reimbursement of an eligible expense shall maximum amount that may be made no later than the last day taken into account under a qualified plan pursuant to Section 401(a)(17) of the employee’s taxable year that immediately follows Code for the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or payment2010 calendar year. (iii) d. The foregoing provisions of this Section 26 are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A..

Internal Revenue Code Section 409A. (i) a. Notwithstanding any provision anything to the contrary hereinin this Agreement, no Deferred Compensation Separation Payments (as defined below) that becomes Benefits will become payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes until Executive has a “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and any the final regulations and Internal Revenue Service guidance promulgated thereunder and any applicable state law equivalent, as each may be amended or promulgated from time to time (collectively, “Section 409A”). Similarly, no severance payable to Executive, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until Executive has a “separation from service” within the meaning of Section 409A. Further, if Employee Executive is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on at the date time of EmployeeExecutive’s termination separation from service (other than a termination due to death), then if and to the severance payable extent necessary to Employee, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation avoid subjecting Executive to an additional tax under Section 409A (together the “409A, any Deferred Compensation Separation Payments”) Payments that are otherwise payable within the first six (6) months following EmployeeExecutive’s termination of employment, shall be delayed until the first payroll date that occurs separation from service will become payable on or after the date that is six (6) months and one (1) day after following the date of the termination, when they shall be paid in full arrearsExecutive’s separation of service. All subsequent Deferred Compensation Separation PaymentsBenefits, if any, shall will be paid payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee Executive dies following his termination separation from service but prior to the six (6) month anniversary of his terminationseparation from service, then any Payments payments delayed in accordance with this paragraph Section 29(a) will be payable in a lump sum as soon as administratively practicable after the date of EmployeeExecutive’s death and all other Payments Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. See Section 19 of this Agreement regarding Executive’s responsibility for the payment of taxes. (ii) b. Any taxable reimbursements and/or taxable in-kind benefits provided in amount paid under this Agreement shall be made or provided in accordance with that satisfies the requirements of the “short-term deferral” rule set forth in Section 409A1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Compensation Separation Benefits for purposes of Section 29(a) above. c. Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the “Section 409A Limit” (as defined below) will not constitute Deferred Compensation Separation Benefits for purposes of Section 29(a) above. For purposes of this Section 29(c), including“Section 409A Limit” will mean the lesser of two (2) times: (i) Executive’s annualized compensation based upon the amount annual rate of any such expense reimbursement or in-kind benefit provided pay paid to Executive during a the Executive’s taxable year preceding the Executive’s taxable year of the Employee shall not affect Executive’s termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any expenses eligible for reimbursement in any other taxable yearInternal Revenue Service guidance issued with respect thereto; or (ii) the reimbursement of an eligible expense shall maximum amount that may be made no later than the last day taken into account under a qualified plan pursuant to Section 401(a)(17) of the employee’s taxable year that immediately follows Code for the taxable for the year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or paymentExecutive’s separation from service occurred. d. Executive and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A. In no event will the Company reimburse Executive (iiior Executive’s estate or beneficiaries) for any taxes that may be imposed on Executive (or Executive’s estate or beneficiaries) as a result of Section 409A. The foregoing provisions of this Section 29 are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities or ambiguous terms herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A..

Internal Revenue Code Section 409A. (ia) Notwithstanding any provision to the contrary herein, no Deferred Compensation Separation Payments (as defined below) that becomes payable under this Agreement by reason of EmployeeExecutive’s termination of employment with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee Executive is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on the date of EmployeeExecutive’s termination (other than a termination due to death), then the severance payable to EmployeeExecutive, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following EmployeeExecutive’s termination of employment, shall be delayed until the first payroll date that occurs on or after the date that is six (6) months and one (1) day after the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment or benefitfull. Notwithstanding anything herein to the contrary, if Employee Executive dies following his termination but prior to the six (6) month anniversary of his termination, then any Payments payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of EmployeeExecutive’s death and all other Payments will be payable in accordance with the payment schedule applicable to each payment or benefitdeath. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (iib) Any taxable reimbursements and/or taxable in-kind benefits provided in amounts paid under this Agreement shall be made or provided in accordance with that satisfy the requirements of the “short-term deferral” rule set forth in Section 409A, including: (i1.409A-1(b)(4) the amount of any such expense reimbursement or in-kind benefit provided during a taxable year of the Employee shall Treasury Regulations will not affect any expenses eligible constitute Deferred Compensation Separation Payments for reimbursement in any other taxable year; purposes of clause (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or paymentabove. (iiic) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee Executive under Section 409A.

Internal Revenue Code Section 409A. It is the intent of the Parties that any compensation and benefits payable or provided to Executive under this Agreement be paid or provided in compliance with Section 409A of the Code and all regulations, guidance, and other interpretative authority issued thereunder (icollectively, “Section 409A”) or in accordance with any applicable exemption from Section 409A. Unless otherwise provided herein, the Parties acknowledge and agree that all compensation and benefits payable or provided to Executive under Agreement are paid and provided in compliance with Section 409A, and therefore, the Company shall not report any of such compensation or benefits in Box 12 of Executive’s Form W-2 using code “Z.” Notwithstanding any provision anything to the contrary hereinin this Agreement, no Deferred Compensation Separation Payments (as defined below) that becomes payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will Executive has been determined to be made unless such termination of employment constitutes a “separation from servicespecified employee” within the meaning of Section 409A at the time of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on the date of EmployeeExecutive’s termination separation from service (other than a termination due to death), then therefore, the severance payable payments of “nonqualified deferred compensation” subject to EmployeeSection 409A, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following EmployeeExecutive’s termination of employmentseparation from service, shall will be delayed until paid on the first payroll date that occurs on or after of the date that is six seventh (67th) months and one (1) day after month following the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment or benefitExecutive’s separation from service. Notwithstanding anything herein to the contrary, if Employee dies in the event of Executive’s death following his termination Executive’s separation from service, but prior to before the six (6) month anniversary of his terminationthe separation from service, then any Payments payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after practicableafter the date of EmployeeExecutive’s death and all other Payments deferred compensation payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for For purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in 409A, Executive’s right to receive any installment payments pursuant to this Agreement shall be made or provided in accordance treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “within sixty (60) days following the requirements date of Section 409Atermination”), including: (i) the amount actual date of any such expense reimbursement or in-kind benefit provided during a taxable year payment within the specified period shall be within the sole discretion of the Employee Company, but shall not affect any expenses eligible for reimbursement in any other taxable year; exceed the maximum days allotted (iie.g. “within sixty (60) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or paymentdays”). (iii) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.

Internal Revenue Code Section 409A. (i) Notwithstanding any provision to the contrary herein, no Deferred Compensation Separation Payments (as defined below) that becomes payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on the date of Employee’s termination (other than a termination due to death), then the severance payable to Employee, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following Employee’s termination of employment, shall be delayed until the first payroll date that occurs on or after the date that is six (6) months and one (1) day after the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee dies following his termination but prior to the six (6) month anniversary of his termination, then any Payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in amounts paid under this Agreement shall be made or provided in accordance with that satisfy the requirements of the “short-term deferral” rule set forth in Section 409A, including: 1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Compensation Separation Payments for purposes of clause (i) the amount of any such expense reimbursement or in-kind benefit provided during a taxable year of the Employee shall not affect any expenses eligible for reimbursement in any other taxable year; (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or paymentabove. (iii) The foregoing provisions are intended Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to comply with Section 1.409A-1(b)(9)(iii) of the requirements of Treasury Regulations that do not exceed the Section 409A so Limit shall not constitute Deferred Compensation Separation Payments for purposes of clause (i) above. “Section 409A Limit” will mean the lesser of two (2) times: (A) Employee’s annualized compensation based upon the annual rate of pay paid to Employee during the Company’s taxable year preceding the Company’s taxable year of Employee’s termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or (B) the maximum amount that none may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the severance payments and benefits to be provided Code for the year in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.Employee’s employment is terminated.

Internal Revenue Code Section 409A. (i) a. Notwithstanding any provision anything to the contrary hereinin this Agreement, no “Deferred Compensation Separation Payments Benefits” (as defined below) that becomes will become payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes until Employee has a “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and any the final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on at the date time of Employee’s termination (other than a termination due to death), then and the severance payable to Employee, if any, under pursuant to this Agreement, when considered together with any other severance payments or separation benefits that benefits, are considered deferred compensation under Section 409A (together together, the “Deferred Compensation Separation PaymentsBenefits”) ), such Deferred Compensation Separation Payments that are otherwise payable within the first six (6) months following Employee’s termination of employment, shall be delayed until employment will become payable on the first payroll date that occurs on or after the date that is six (6) months and one (1) day after following the date of the termination, when they shall be paid in full arrearsEmployee’s termination of employment. All subsequent Deferred Compensation Separation PaymentsBenefits, if any, shall will be paid payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee dies following his termination but prior to the six (6) month anniversary of his termination, then any Payments payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Payments Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) b. Any taxable reimbursements and/or taxable in-kind benefits provided in amount paid under this Agreement shall be made or provided in accordance with that satisfies the requirements of the “short-term deferral” rule set forth in Section 409A1.409A-1(b)(4) of the Treasury Regulations shall not constitute Deferred Compensation Separation Benefits for purposes of Section 26(a) above. c. Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the “Section 409A Limit” (as defined below) shall not constitute Deferred Compensation Separation Benefits for purposes of Section 26(a) above. For purposes of this Section 26(c), including“Section 409A Limit” will mean the lesser of two (2) times: (i) Employee’s annualized compensation based upon the amount annual rate of any such expense reimbursement or in-kind benefit provided pay paid to Employee during a the Employee’s taxable year preceding the Employee’s taxable year of the Employee shall not affect any expenses eligible for reimbursement in any other taxable yearEmployee’s termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1); or (ii) the reimbursement of an eligible expense shall maximum amount that may be made no later than the last day taken into account under a qualified plan pursuant to Section 401(a)(17) of the employee’s taxable year that immediately follows Code for the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or payment2009 calendar year. (iii) d. The foregoing provisions of this Section 26 are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A..

Internal Revenue Code Section 409A. Section 15(c) of the Agreement shall be amended and restated in its entirety to provide as follows: (ic) Notwithstanding any provision anything to the contrary hereinin this Agreement, no Deferred Compensation Separation Payments (as defined below) that becomes severance payments or benefits payable under to you, if any, pursuant to this Agreement by reason of Employee’s termination of employment that, when considered together with any other severance payments or separation benefits, is considered deferred compensation under Section 409A (together, the Company (or any successor entity thereto“Deferred Payments”) will be made unless such termination of employment constitutes payable until you have a “separation from service” within the meaning of Section 409A. Similarly, no severance payable to you, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until you have a “separation from service” within the meaning of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). 409A. Further, if Employee is you are a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on at the date time of Employee’s termination your separation from service (other than a termination due to death), then the severance payable to Employee, if any, under this Agreement, when considered together with any other severance payments or separation benefits Deferred Payments that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that otherwise are payable within the first six (6) months following Employee’s termination of employment, shall be delayed until your separation from service will become payable on the first payroll date that occurs on or after the date that is six (6) months and one (1) day after following the date of the termination, when they shall be paid in full arrearsyour separation from service. All subsequent Deferred Compensation Separation Payments, if any, shall will be paid payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee dies in the event of your death following his termination your separation from service but prior to the six (6) month anniversary of his terminationyour separation from service (or any later delay date), then any Payments payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s your death and all other Deferred Payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this the Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) . Any taxable reimbursements and/or taxable in-kind benefits provided in this Agreement shall be made or provided in accordance with severance payment that satisfies the requirements of the “short-term deferral” rule set forth in Section 409A1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Payments for purposes of the Agreement. Any severance payment that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit will not constitute Deferred Payments for purposes of the Agreement. For purposes of this paragraph, including“Section 409A Limit” will mean the lesser of two (2) times: (i) your annualized compensation based upon the amount annual rate of any such expense reimbursement or in-kind benefit provided pay paid to you during a the Company’s taxable year preceding the Company’s taxable year of the Employee shall not affect your separation from service as determined under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and any expenses eligible for reimbursement in any other taxable yearInternal Revenue Service guidance issued with respect thereto; or (ii) the reimbursement of an eligible expense shall maximum amount that may be made no later than the last day taken into account under a qualified plan pursuant to Section 401(a)(17) of the employee’s taxable year that immediately follows Code for the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or payment. (iii) your employment is terminated. The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this under the Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The You and the Company and Employee agree to work together in good faith to consider amendments to this the Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee you under Section 409A.”

Internal Revenue Code Section 409A. It is the intent of the Parties that any compensation and benefits payable or provided to Executive under this Agreement be paid or provided in compliance with Section 409A of the Code and all regulations, guidance, and other interpretative authority issued thereunder (icollectively, “Section 409A”) or in accordance with any applicable exemption from Section 409A. Unless otherwise provided herein, the Parties acknowledge and agree that all compensation and benefits payable or provided to Executive under Agreement are paid and provided in compliance with Section 409A, and therefore, the Company shall not report any of such compensation or benefits in Box 12 of Executive’s Form W-2 using code “Z.” Notwithstanding any provision anything to the contrary hereinin this Agreement, no Deferred Compensation Separation Payments (as defined below) that becomes payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will Executive has been determined to be made unless such termination of employment constitutes a “separation from service” "specified employee" within the meaning of Section 409A at the time of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on the date of Employee’s termination Executive's separation from service (other than a termination due to death), then therefore, the severance payable payments of "nonqualified deferred compensation" subject to EmployeeSection 409A, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following Employee’s termination of employmentExecutive's separation from service, shall will be delayed until paid on the first payroll date that occurs on or after of the date that is six seventh (67th) months and one (1) day after month following the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment or benefitExecutive's separation from service. Notwithstanding anything herein to the contrary, if Employee dies in the event of Executive's death following his termination Executive's separation from service, but prior to before the six (6) month anniversary of his terminationthe separation from service, then any Payments payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s Executive's death and all other Payments deferred compensation payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for For purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in 409A, Executive's right to receive any installment payments pursuant to this Agreement shall be made or provided in accordance treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “within sixty (60) days following the requirements date of Section 409Atermination”), including: (i) the amount actual date of any such expense reimbursement or in-kind benefit provided during a taxable year payment within the specified period shall be within the sole discretion of the Employee Company, but shall not affect any expenses eligible for reimbursement in any other taxable year; exceed the maximum days allotted (iie.g. “within sixty (60) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or paymentdays”). (iii) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.

Internal Revenue Code Section 409A. (i) a. Notwithstanding any provision anything to the contrary hereinin this Agreement, no Deferred Compensation Separation Payments (as defined below) that becomes Benefits will become payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes until Executive has a “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and any the final regulations and Internal Revenue Service guidance promulgated thereunder and any applicable state law equivalent, as each may be amended or promulgated from time to time (collectively, “Section 409A”). Similarly, no severance payable to Executive, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until Executive has a “separation from service” within the meaning of Section 409A. Further, if Employee Executive is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on at the date time of EmployeeExecutive’s termination separation from service (other than a termination due to death), then if and to the severance payable extent necessary to Employee, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation avoid subjecting Executive to an additional tax under Section 409A (together the “409A, any Deferred Compensation Separation Payments”) Payments that are otherwise payable within the first six (6) months following EmployeeExecutive’s termination of employment, shall separation from service will be delayed until the first payroll date that occurs paid on or after the date that is six (6) months and one (1) day after following the date of the termination, when they shall be paid in full arrearsExecutive’s separation of service. All subsequent Deferred Compensation Separation PaymentsBenefits, if any, shall will be paid payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee Executive dies following his termination separation from service but prior to the six (6) month anniversary of his terminationseparation from service, then any Payments payments delayed in accordance with this paragraph Section 27.a will be payable in a lump sum as soon as administratively practicable after the date of EmployeeExecutive’s death and all other Payments Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. See Section 17 of this Agreement regarding Executive’s responsibility for the payment of taxes. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in this Agreement shall be made or provided in accordance with b. Executive and the requirements of Section 409A, including: (i) the amount of any such expense reimbursement or in-kind benefit provided during a taxable year of the Employee shall not affect any expenses eligible for reimbursement in any other taxable year; (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or payment. (iii) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which that are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee Executive under Section 409A.409A. Notwithstanding any contrary provision of this Agreement, in no event will the Company have any liability or obligation to reimburse, indemnify, or hold harmless Executive (or Executive’s estate or beneficiaries or any other person) for any taxes, costs or liabilities that may be imposed on or incurred by Executive (or Executive’s estate or beneficiaries or any other person) as a result of Section 409A or any provision of the Code. The provisions of this Agreement are intended to comply with or be exempt from the requirements of Section 409A so that none of the Severance Payment or other payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities or ambiguous terms herein will be interpreted to so comply or be exempt.

Internal Revenue Code Section 409A. (i) Notwithstanding any provision to the contrary herein, no Deferred Compensation Separation Payments (as defined below) that becomes payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on the date of Employee’s termination (other than a termination due to death), then the severance payable to Employee, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following Employee’s termination of employment, shall be delayed until the first payroll date that occurs on or after the date that is six (6) months and one (1) day after the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee dies following his termination but prior to the six (6) month anniversary of his termination, then any Payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in amounts paid under this Agreement shall be made or provided in accordance with that satisfy the requirements of the “short-term deferral” rule set forth in Section 409A, including: (i1.409A-1(b)(4) the amount of any such expense reimbursement or in-kind benefit provided during a taxable year of the Employee shall Treasury Regulations will not affect any expenses eligible constitute Deferred Compensation Separation Payments for reimbursement in any other taxable year; purposes of clause (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or paymentabove. (iii) The foregoing provisions are intended Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to comply with Section 1.409A-1(b)(9)(iii) of the requirements of Treasury Regulations that do not exceed the Section 409A so Limit shall not constitute Deferred Compensation Separation Payments for purposes of clause (ii) above. “Section 409A Limit” will mean the lesser of two (2) times: (A) Employee’s annualized compensation based upon the annual rate of pay paid to Employee during the Company’s taxable year preceding the Company’s taxable year of Employee’s termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or (B) the maximum amount that none may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the severance payments and benefits to be provided Code for the year in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.Employee’s employment is terminated.

Internal Revenue Code Section 409A. (i) Notwithstanding any provision a. The severance payments and benefits under this Agreement are intended to comply with, or be exempt from the contrary herein, no Deferred Compensation Separation Payments requirements of “Section 409A” (as defined below) so that becomes payable under this Agreement by reason none of Employee’s termination of employment with the Company (or any successor entity thereto) them will be made unless such termination of employment constitutes a “separation from service” within subject to the meaning of additional tax imposed under Section 409A of the Internal Revenue Code (the “Code”)409A, and any final regulations ambiguities or ambiguous terms in this Agreement shall be interpreted to be so exempt or otherwise comply with Section 409A. If and Internal Revenue Service guidance promulgated thereunder (“to the extent necessary to avoid subjecting Employee to an additional tax under Section 409A”). Further, and if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on at the date time of Employee’s termination (other than a termination due to death), then the severance payable to Employee, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”” (as defined below) that are otherwise payable within the first six (6) months following Employee’s termination of employment, separation from service shall be delayed until become payable on the first payroll date that occurs on or after the date that is six (6) months and one (1) day after following the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment or benefitEmployee’s separation from service. Notwithstanding anything herein to the contrary, if Employee dies following his termination but prior to the six (6) month 6)-month anniversary of his termination, then any Payments payments delayed in accordance with this paragraph will Section 27(a) shall be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Deferred Payments will shall be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. See Section 16 of this Agreement regarding Employee’s responsibility for the payment of taxes. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided b. Notwithstanding anything to the contrary in this Agreement, no Deferred Payments shall become payable under this Agreement until Employee has a “separation from service” within the meaning of Section 409A. Similarly, no severance payable to Employee pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) shall be made or provided in accordance with payable until Employee has a “separation from service” within the requirements meaning of Section 409A. c. For purposes of this Agreement, “Section 409A, including: (i) the amount of any such expense reimbursement or in-kind benefit provided during a taxable year ” means Section 409A of the Employee shall not affect Internal Revenue Code of 1986, as amended (the “Code”), and the final regulations and official guidance promulgated thereunder, as each have been or may be amended from time to time. For purposes of this Agreement, “Deferred Payments” means any expenses eligible for reimbursement in any other taxable year; (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation severance pay or exchange for another benefit or payment. (iii) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be paid or provided in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments (or Employee’s estate or beneficiaries) pursuant to this Agreement and to take such reasonable actions which are necessary, appropriate any other severance payments or desirable to avoid imposition of any additional tax or income recognition prior to actual payment separation benefits payable to Employee (or Employee’s estate or beneficiaries), that in each case, when considered together, are considered deferred compensation under Section 409A.

Internal Revenue Code Section 409A. (i) Notwithstanding any provision anything to the contrary hereinin this Agreement, no Deferred Compensation Separation Payments (as defined below) that becomes payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes if Executive is a “separation from servicespecified employee” within the meaning of Section 409A of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee is a “specified employee” as applied according to procedures of the Company (or any successor entity thereto) within at the meaning time of Section 409A on the date of EmployeeExecutive’s termination of employment (other than a termination due to death), then the severance benefits payable to EmployeeExecutive under this Agreement, if any, under this Agreement, when considered together with and any other severance payments or separation benefits payments that are may be considered deferred compensation under Section 409A (together together, the “Deferred Compensation Separation PaymentsBenefits”) that are payable otherwise due to Executive on or within the first six (6) months month period following EmployeeExecutive’s termination of employment, shall be delayed until the first payroll date that occurs employment will accrue during such six (6) month period and will become payable in a lump sum payment (less applicable withholding taxes) on or after the date that is six (6) months and one (1) day after following the date of the termination, when they shall be paid in full arrearsExecutive’s termination of employment. All subsequent Deferred Compensation Separation Paymentspayments, if any, shall will be paid payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee Executive dies following his or her termination of employment but prior to the six (6) month anniversary of his or her date of termination, then any Payments payments delayed in accordance with this paragraph will be payable in a lump sum (less applicable withholding taxes) to Executive’s estate as soon as administratively practicable after the date of EmployeeExecutive’s death and all other Payments Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable of severance benefits to Executive under this Agreement that is made by March 15 of the calendar year following Executive’s termination of employment and is intended to not constitute a “deferral of compensation” by virtue of the “short term deferral” rule of Treasury Regulations Section 1.409A-1(b)(4) shall constitute a “separate payment payment” for purposes of Section 1.409A-2(b)(2) application of the Treasury Regulationsthat rule. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in this Agreement shall be made or provided in accordance with the requirements of Section 409A, including: (i) the amount of any such expense reimbursement or in-kind benefit provided during a taxable year of the Employee shall not affect any expenses eligible for reimbursement in any other taxable year; (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or payment. (iii) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.

Internal Revenue Code Section 409A. (i) Notwithstanding It is the intent of the Parties that any provision compensation and benefits payable or provided to the contrary herein, no Deferred Compensation Separation Payments (as defined below) that becomes payable Employee under this Agreement by reason of Employee’s termination of employment be paid or provided in compliance with the Company (or any successor entity thereto) will be made unless such termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code (the “Code”)and all regulations, guidance, and any final regulations and Internal Revenue Service guidance promulgated other interpretative authority issued thereunder (collectively, “Section 409A”). Further) or in accordance with any applicable exemption from Section 409A. The Parties acknowledge and agree that all compensation and benefits payable or provided to Employee under Agreement are paid and provided in compliance with Section 409A, and therefore, the Company shall not report any of such compensation or benefits in Box 12 of Employee’s Form W-2 using code “Z.” Notwithstanding anything to the contrary in this Agreement, if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on at the date time of Employee’s termination separation from service (other than a termination due to death), then the severance payable payments of “nonqualified deferred compensation” subject to EmployeeSection 409A, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following Employee’s termination of employmentseparation from service, shall will be delayed until paid on the first payroll date that occurs on or after of the date that is six seventh (67th) months and one (1) day after month following the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment or benefitEmployee’s separation from service. Notwithstanding anything herein to the contrary, if Employee dies in the event of Employee’s death following his termination Employee’s separation from service, but prior to before the six (6) month anniversary of his terminationthe separation from service, then any Payments payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Payments deferred compensation payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for For purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in 409A, Employee’s right to receive any installment payments pursuant to this Agreement shall be made or provided in accordance treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “within sixty (60) days following the requirements date of Section 409Atermination”), including: (i) the amount actual date of any such expense reimbursement or in-kind benefit provided during a taxable year payment within the specified period shall be within the sole discretion of the Employee shall not affect any expenses eligible for reimbursement in any other taxable year; (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or paymentCompany. (iii) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.

Internal Revenue Code Section 409A. The intent of you and the Company is that payments and benefits under this Retirement Agreement comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (i) collectively “Code Section 409A”); accordingly, to the maximum extent permitted, this Retirement Agreement shall be interpreted to be in compliance therewith. Notwithstanding any provision of this Retirement Agreement to the contrary hereincontrary, no Deferred Compensation Separation Payments in the event that you are a “specified employee” within the meaning of Code Section 409A (as defined belowdetermined in accordance with the methodology established by the Company as in effect on the Separation Date) (a “Specified Employee”), any payments or benefits that becomes are considered non-qualified deferred compensation under Code Section 409A payable under this Retirement Agreement by reason on account of Employee’s termination a “separation from service” during the six-month period immediately following your “separation from service” shall, to the extent necessary to comply with Code Section 409A and following the application of employment with the Company (relevant exceptions under Treas. Reg. 1.409A-1(b)(9), instead be paid, or any successor entity thereto) will be made unless such termination of employment constitutes a provided, as the case may be, on the first regular payroll date after the date that is six months following your “separation from service” within the meaning of Code Section 409A 409A. For purposes of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”), your right to receive any installment payments pursuant to this Retirement Agreement shall be treated as a right to receive a series of separate and distinct payments. FurtherIn no event may you, if Employee is a “specified employee” directly or indirectly, designate the calendar year of the Company (or any successor entity thereto) within the meaning of Section 409A on the date of Employee’s termination (other than a termination due payment to death), then the severance payable to Employee, if any, be made under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following Employee’s termination of employment, shall be delayed until the first payroll date that occurs on or after the date Retirement Agreement that is six (6) months considered nonqualified deferred compensation, subject to Code Section 409A. With regard to any provision herein that provides for reimbursement of costs and one (1) day after the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment expenses or benefit. Notwithstanding anything herein to the contrary, if Employee dies following his termination but prior to the six (6) month anniversary of his termination, then any Payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in this Agreement shall be made or provided in accordance with the requirements of that are deferred compensation subject to Code Section 409A, including: (i) the amount of any such expense right to reimbursement or in-kind benefit provided during a taxable year of the Employee shall not affect any expenses eligible for reimbursement in any other taxable year; (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement benefits shall not be subject to liquidation or exchange for another benefit benefit, the amount of expenses eligible for reimbursement, or payment. (iii) The foregoing provisions are intended to comply with in-kind benefits, provided during any taxable year shall not affect the requirements of Section 409A so that none of the severance payments and expenses eligible for reimbursement, or in-kind benefits to be provided provided, in this Agreement will be subject to the additional tax imposed under Section 409Aany other taxable year, and any ambiguities herein will such payments shall be interpreted to so comply. The Company and Employee agree to work together made on or before the last day of your taxable year following the taxable year in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.the expense occurred.

Internal Revenue Code Section 409A. It is the intent of the Parties that any compensation and benefits payable or provided to Executive under this Agreement are paid solely for his services as Chief Executive Officer and President of the Company, and are paid and provided in compliance with Section 409A of the Code and all regulations, guidance, and other interpretative authority issued thereunder (icollectively, “Section 409A”) or in accordance with any applicable exemption from Section 409A. Unless otherwise provided herein, the Parties acknowledge and agree that all compensation and benefits payable or provided to Executive under Agreement are paid and provided in compliance with Section 409A, and therefore, the Company shall not report any of such compensation or benefits in Box 12 of Executive’s Form W-2 using code “Z.” Notwithstanding any provision anything to the contrary hereinin this Agreement, no Deferred Compensation Separation Payments (as defined below) that becomes payable under this Agreement by reason of Employee’s termination of employment with the Company (or any successor entity thereto) will Executive has been determined to be made unless such termination of employment constitutes a “separation from service” "specified employee" within the meaning of Section 409A at the time of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). Further, if Employee is a “specified employee” of the Company (or any successor entity thereto) within the meaning of Section 409A on the date of Employee’s termination Executive's separation from service (other than a termination due to death), then therefore, the severance payable payments of "nonqualified deferred compensation" subject to EmployeeSection 409A, if any, under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following Employee’s termination of employmentExecutive's separation from service, shall will be delayed until paid on the first payroll date that occurs on or after of the date that is six seventh (67th) months and one (1) day after month following the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment or benefitExecutive's separation from service. Notwithstanding anything herein to the contrary, if Employee dies in the event of Executive's death following his termination Executive's separation from service, but prior to before the six (6) month anniversary of his terminationthe separation from service, then any Payments payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s Executive's death and all other Payments deferred compensation payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for For purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in 409A, Executive's right to receive any installment payments pursuant to this Agreement shall be made or provided in accordance treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “within sixty (60) days following the requirements date of Section 409Atermination”), including: (i) the amount actual date of any such expense reimbursement or in-kind benefit provided during a taxable year payment within the specified period shall be within the sole discretion of the Employee Company, but shall not affect any expenses eligible for reimbursement in any other taxable year; exceed the maximum days allotted (iie.g. “within sixty (60) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement shall not be subject to liquidation or exchange for another benefit or paymentdays”). (iii) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided in this Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.

Internal Revenue Code Section 409A. The intent of you and the Company is that payments and benefits under this Transition Agreement comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (i) collectively “Code Section 409A”); accordingly, to the maximum extent permitted, this Transition Agreement shall be interpreted to be in compliance therewith. Notwithstanding any provision of this Transition Agreement to the contrary hereincontrary, no Deferred Compensation Separation Payments in the event that you are a “specified employee” within the meaning of Code Section 409A (as defined belowdetermined in accordance with the methodology established by the Company as in effect on the Separation Date) (a “Specified Employee”), any payments or benefits that becomes are considered non-qualified deferred compensation under Code Section 409A payable under this Transition Agreement by reason on account of Employee’s termination a “separation from service” during the six-month period immediately following your “separation from service” shall, to the extent necessary to comply with Code Section 409A and following the application of employment with the Company (relevant exceptions under Treas. Reg. 1.409A-1(b)(9), instead be paid, or any successor entity thereto) will be made unless such termination of employment constitutes a provided, as the case may be, on the first regular payroll date after the date that is six months following your “separation from service” within the meaning of Code Section 409A 409A. For purposes of the Internal Revenue Code (the “Code”), and any final regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”), your right to receive any installment payments pursuant to this Transition Agreement shall be treated as a right to receive a series of separate and distinct payments. FurtherIn no event may you, if Employee is a “specified employee” directly or indirectly, designate the calendar year of the Company (or any successor entity thereto) within the meaning of Section 409A on the date of Employee’s termination (other than a termination due payment to death), then the severance payable to Employee, if any, be made under this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together the “Deferred Compensation Separation Payments”) that are payable within the first six (6) months following Employee’s termination of employment, shall be delayed until the first payroll date that occurs on or after the date Transition Agreement that is six (6) months considered nonqualified deferred compensation, subject to Code Section 409A. With regard to any provision herein that provides for reimbursement of costs and one (1) day after the date of the termination, when they shall be paid in full arrears. All subsequent Deferred Compensation Separation Payments, if any, shall be paid in accordance with the payment schedule applicable to each payment expenses or benefit. Notwithstanding anything herein to the contrary, if Employee dies following his termination but prior to the six (6) month anniversary of his termination, then any Payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Payments will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (ii) Any taxable reimbursements and/or taxable in-kind benefits provided in this Agreement shall be made or provided in accordance with the requirements of that are deferred compensation subject to Code Section 409A, including: (i) the amount of any such expense right to reimbursement or in-kind benefit provided during a taxable year of the Employee shall not affect any expenses eligible for reimbursement in any other taxable year; (ii) the reimbursement of an eligible expense shall be made no later than the last day of the employee’s taxable year that immediately follows the taxable year in which the expense was incurred; and (iii) the right to any such reimbursement benefits shall not be subject to liquidation or exchange for another benefit benefit, the amount of expenses eligible for reimbursement, or payment. (iii) The foregoing provisions are intended to comply with in-kind -9- benefits, provided during any taxable year shall not affect the requirements of Section 409A so that none of the severance payments and expenses eligible for reimbursement, or in-kind benefits to be provided provided, in this Agreement will be subject to the additional tax imposed under Section 409Aany other taxable year, and any ambiguities herein will such payments shall be interpreted to so comply. The Company and Employee agree to work together made on or before the last day of your taxable year following the taxable year in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.the expense occurred.