Common use of Limitations Under Code Section 409A Clause in Contracts

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (a) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code, (b) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (c) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (d) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 23, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x) six (6) months after the Executive’s termination date, (y) the Executive’s death or (z) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. (i) Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code), (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code ), as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235(g), would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is In particular, with respect to any lump sum payment otherwise required hereunder, in the intention event of any delay in the parties that payment date as a result of Section 409A(a)(2)(A)(i) and (B)(i), the Company will adjust the payments or benefits payable under this Agreement not be subject to reflect the additional tax imposed pursuant to Section 409A of deferred payment date by crediting interest thereon at the Code. prime rate in effect at the time such amount first becomes payable, as quoted by the Company’s principal bank. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Code Section 409A provided on account of a “separation from service,” and such potential payments or benefits could become subject to such Sectionare not otherwise exempt from Section 409A, the parties Executive shall cooperate pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Executive, to amend the extent that such costs would otherwise have been paid by the Company or to the extent that such benefits would otherwise have been provided by the Company at no cost to the Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein. (iii) In addition, other provisions of this Agreement with or any other such plan notwithstanding, the goal Company shall have no right to accelerate any such payment or to make any such payment as the result of giving any specific event except to the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. extent permitted under Section 409A. (iv) For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement includingeach payment made after termination of employment, without limitation, each severance payment and including COBRA continuation reimbursement shall payment, will be treated as a right to receive considered one of a series of separate and distinct payments. . (v) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (vi) Any amount that the Executive is entitled to be reimbursed under this Agreement that may be treated as taxable compensation, including any Gross-Up Payment pursuant to Section 10(b), will be reimbursed to the Executive as promptly as practical and in any event not later than sixty (60) days after the last day end of the calendar year after the calendar year in which the expenses are incurred. Any right ; provided that Executive shall have provided a reimbursement request to the Company no later than thirty (30) days prior to the date the reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefitis due. The amount of the expenses eligible for reimbursement during any taxable calendar year will not affect the amount of expenses eligible for reimbursement in any other taxable calendar year. , except as may be required pursuant to an arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code. (vii) The Company shall not be obligated to reimburse Executive for any tax penalty or interest or provide a gross-up in connection with any tax liability of Executive under Section 409A. (viii) Any annual bonus that is earned pursuant to Section 4(b) shall be paid, whether is cash or equity as provided above, between January 1 and March 15 of the year following the year for which such annual bonus was earned; provided, however, that if the Board shall determine that it is administratively impracticable, which may include inability of the Company to gain certification of its financial statements, to make such annual bonus payment by March 15, any such payment shall be made as soon as reasonably practicable after such period and in no event later than December 31 of the year following the year for which such annual bonus was earned. (ix) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. (x) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of termination of Executive’s employment in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made on a monthly basis.” 2. Section 6(d) of the Employment Agreement is hereby amended to read as follows:

Limitations Under Code Section 409A. 11.1 Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code), (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code ), as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235(g), would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is . 11.2 In addition, other provisions of this Agreement or any other such plan notwithstanding, the intention Company shall have no right to accelerate any such payment or to make any such payment as the result of any specific event except to the parties that payments extent permitted under Section 409A. 11.3 A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits payable under this Agreement not be subject to upon or following a termination of employment unless such termination is also a “separation from service” within the additional tax imposed pursuant to meaning of Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Sectionand, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For for purposes of Section 409Aany such provision of this Agreement, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference references to a number “termination,” “termination of days (e.g., employment” or like terms shall mean “payment shall be made within thirty (30) days following the date of terminationseparation from service.”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the CodeCode (such additional tax, together with any such interest and penalties, are hereinafter referred to as the “Additional Tax”), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial paymentpayment plus interest equal to the rate provided in Section 1274(b)(2)(B) of the Code). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (a) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code, (b) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (c) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (d) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 2322, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x) six (6) months after the Executive’s termination date, (y) the Executive’s death or (z) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (ai) on the date of termination of Executive’s 's employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is shares of beneficial interest are publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (ii) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (ciii) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (div) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the Executive’s 's termination date, (y2) the Executive’s 's death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). Each continuation payment of the Executive’s Annual Salary, as described in Sections 5.3 and 5.4, shall constitute a separate, individual payment for purposes of Code Section 409A. It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiaryCompany, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments made hereunder upon termination from employment exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) ), and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 232.9, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the CodeCode (such additional tax, together with any such interest and penalties, are hereinafter referred to as the “Additional Tax”), then (if such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of termination) no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months after the Executive’s 's termination date, (y2) the Executive’s death death, or (z3) such other date as will cause such payment not to be subject to such interest and additional tax Additional Tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial paymentpayment plus interest equal to the rate provided in Section 1274(b)(2)(B) of the Code). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the CodeAdditional Tax. To the extent such potential payments or benefits could become subject to such SectionAdditional Tax, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. (a) Anything in this Agreement to the contrary notwithstanding, if (aA) on the date Date of termination Termination of ExecutiveEmployee’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive Employee is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code), (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code ), as a result of such termination, the Executive Employee would receive any payment that, absent the application of this Section 23Section, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the ExecutiveEmployee’s termination dateDate of Termination, (y2) the ExecutiveEmployee’s death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is In particular, with respect to any lump sum payment otherwise required hereunder, in the intention event of any delay in the parties that payment date as a result of Section 409A(a)(2)(A)(i) and (B)(i), the Company will adjust the payments or benefits payable under this Agreement not be subject to reflect the additional tax imposed pursuant to Section 409A of deferred payment date by crediting interest thereon at the Code. prime rate in effect at the time such amount first becomes payable, as quoted by the Company’s principal bank. (b) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Code Section 409A provided on account of a “separation from service,” and such potential payments or benefits could become subject to such Sectionare not otherwise exempt from Section 409A, the parties Executive shall cooperate pay the cost of such benefits during the Delay Period, and the Company shall reimburse Employee, to amend the extent that such costs would otherwise have been paid by the Company or to the extent that such benefits would otherwise have been provided by the Company at no cost to Employee, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein. (c) In addition, other provisions of this Agreement with or any other such plan notwithstanding, the goal Company shall have no right to accelerate any such payment or to make any such payment as the result of giving any specific event except to the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. extent permitted under Section 409A. (d) For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement includingeach payment made after termination of employment, without limitation, each severance payment and including COBRA continuation reimbursement shall payment, will be treated as a right to receive considered one of a series of separate and distinct payments. . (e) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (f) Any amount that the Executive Employee is entitled to be reimbursed under this Agreement that may be treated as taxable compensation, including any gross-up payment, will be reimbursed to the Executive Employee as promptly as practical and in any event not later than 60 days after the last day end of the calendar year after the calendar year in which the expenses are incurred. Any right ; provided that Employee shall have provided a reimbursement request to the Company no later than 30 days prior to the date the reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefitis due. The amount of the expenses eligible for reimbursement during any taxable calendar year will not affect the amount of expenses eligible for reimbursement in any other taxable calendar year. , except as may be required pursuant to an arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code. (g) The Company shall not be obligated to reimburse Employee for any tax penalty or interest or provide a gross-up in connection with any tax liability of Employee under Section 409A. (h) Any Annual Bonus that is earned pursuant to Section 2 hereof shall be paid, whether as cash or equity as provided above, between January 1 and March 15 of the year following the year for which such annual bonus was earned; provided, however, that if the Board shall determine that it is administratively impracticable, which may include inability of the Company to gain certification of its financial statements, to make such Annual Bonus payment by March 15, any such payment shall be made as soon as reasonably practicable after such period and in no event later than December 31 of the year following the year for which such Annual Bonus was earned. (i) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) 30 days following the date Date of terminationTermination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. (j) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of Annual Base Salary or other compensation is to be paid for a specified continuing period of time beyond the date of termination of Executive’s employment in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made on a monthly basis.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiaryCompany, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments made hereunder upon termination from employment exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) ), and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 232.9, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the CodeCode (such additional tax, together with any such interest and penalties, are hereinafter referred to as the “Additional Tax”), then (if such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of termination) no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months after the Executive’s 's termination date, (y2) the Executive’s death death, or (z3) such other date as will cause such payment not to be subject to such interest and additional tax Additional Tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial paymentpayment plus interest equal to the rate provided in Section 1274(b)(2)(B) of the Code). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the CodeAdditional Tax. To the extent such potential payments or benefits could become subject to such SectionAdditional Tax, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes It is further the intention of the parties that all of the payments under Sections 2.3, 2.4, 2.5 and 2.10 of this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A409A(a) of the Code provided under Treasury Regulation Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed construed to the Executive greatest extent possible as promptly as practical consistent with those provisions. If not so exempt, this Agreement (and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment definitions under this Agreement specifies Agreement) will be construed in a manner that complies with Section 409A, and incorporates by reference all required definitions and payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Companyterms.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (a) on the date of termination of Executive’s employment with the Company or a subsidiarythe University, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code, (b) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (c) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (d) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 23, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x) six (6) months after the Executive’s termination date, (y) the Executive’s death or (z) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the CompanyCompany or the University, as applicable.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii1.409A-l(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1409A(a)(l) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the CodeCode (such additional tax, together with any such interest and penalties, are hereinafter referred to as the “Additional Tax”), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial paymentpayment plus interest equal to the rate provided in Section 1274(b)(2)(B) of the Code). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s 's employment with the Company or a subsidiary, any of the Company’s 's stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe "Code")), (B) if Executive is determined to be a “"specified employee” " within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months after the Executive’s 's termination date, (y2) the Executive’s 's death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such SectionSection 409A, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiaryCompany, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments made hereunder upon termination from employment exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) ), and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 232.9, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the CodeCode (such additional tax, together with any such interest and penalties, are hereinafter referred to as the “Additional Tax”), then (if such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of termination) no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months after the Executive’s termination date, (y2) the Executive’s death death, or (z3) such other date as will cause such payment not to be subject to such interest and additional tax Additional Tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial paymentpayment plus interest equal to the rate provided in Section 1274(b)(2)(B) of the Code). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the CodeAdditional Tax. To the extent such potential payments or benefits could become subject to such SectionAdditional Tax, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (a) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code, (b) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (c) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (d) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 2324, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x) six (6) months after the Executive’s termination date, (y) the Executive’s death or (z) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. (i) Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s 's employment with the Company or a subsidiary, any of the Company’s 's stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235(g), would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the Executive’s 's termination date, (y2) the Executive’s 's death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is In particular, with respect to any lump sum payment otherwise required hereunder, in the intention event of any delay in the payment date as a result of Section 409A(a)(2)(A)(i) and (B)(i) of the parties Code, the Company will adjust the payments to reflect the deferred payment date by crediting interest thereon at the prime rate in effect at the time such amount first becomes payable, as quoted by the Company's principal bank. (ii) To the extent that payments or any benefits payable to be provided during the Delay Period are considered deferred compensation under this Agreement Section 409A of the Code provided on account of a “separation from service,” and such benefits are not be subject to the additional tax imposed pursuant to otherwise exempt from Section 409A of the Code. To , Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such potential payments costs would otherwise have been paid by the Company or to the extent that such benefits could become subject would otherwise have been provided by the Company at no cost to such SectionExecutive, the parties Company's share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall cooperate to amend be reimbursed or provided by the Company in accordance with the procedures specified herein. (iii) In addition, other provisions of this Agreement with or any other such plan notwithstanding, the goal Company shall have no right to accelerate any such payment or to make any such payment as the result of giving any specific event except to the Executive extent permitted under Section 409A of the economic benefits described herein in a manner that does not result in such tax being imposed. Code. (iv) For purposes of Section 409A, 409A of the Executive’s right to receive installment payments pursuant to this Agreement including, without limitationCode, each severance payment and made after termination of employment, including COBRA continuation reimbursement shall payments, will be treated as a right to receive considered one of a series of separate and distinct payments. . (v) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (vi) Any amount that the Executive is entitled to be reimbursed under this Agreement that may be treated as taxable compensation will be reimbursed to the Executive as promptly as practical and in any event not later than sixty (60) days after the last day end of the calendar year after the calendar year in which the expenses are incurred. Any right ; provided that Executive shall have provided a reimbursement request to the Company no later than thirty (30) days prior to the date the reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefitis due. The amount of the expenses eligible for reimbursement during any taxable calendar year will not affect the amount of expenses eligible for reimbursement in any other taxable calendar year. , except as may be required pursuant to an arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code. (vii) The Company shall not be obligated to reimburse Executive for any tax penalty or interest or provide a gross-up in connection with any tax liability of Executive under Section 409A of the Code. (viii) Any annual bonus that is earned pursuant to Section 4(b) shall be paid, whether in cash or equity as provided above, between January 1 and March 15 of the year following the year for which such annual bonus was earned; provided, however, that if the Board shall determine that it is administratively impracticable, which may include inability of the Company to gain certification of its financial statements, to make such annual bonus payment by March 15, any such payment shall be made as soon as reasonably practicable after such period and in no event later than December 31 of the year following the year for which such annual bonus was earned. (ix) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), except as specifically provided herein, the actual date of payment within the specified period shall be within the sole discretion of the Company. (x) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of termination of Executive's employment, the payments of such base salary or other compensation shall be made in accordance with the Company's payroll practices (or other similar term) or, if not payable in accordance with the Company's payroll practices, on a monthly basis.

Limitations Under Code Section 409A. (i) Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code), (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code ), as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235(g), would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is In particular, with respect to any lump sum payment otherwise required hereunder, in the intention event of any delay in the parties that payment date as a result of Section 409A(a)(2)(A)(i) and (B)(i), the Company will adjust the payments or benefits payable under this Agreement not be subject to reflect the additional tax imposed pursuant to Section 409A of deferred payment date by crediting interest thereon at the Code. prime rate in effect at the time such amount first becomes payable, as quoted by the Company’s principal bank. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Code Section 409A provided on account of a “separation from service,” and such potential payments or benefits could become subject to such Sectionare not otherwise exempt from Section 409A, the parties Executive shall cooperate pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Executive, to amend the extent that such costs would otherwise have been paid by the Company or to the extent that such benefits would otherwise have been provided by the Company at no cost to the Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein. (iii) In addition, other provisions of this Agreement with or any other such plan notwithstanding, the goal Company shall have no right to accelerate any such payment or to make any such payment as the result of giving any specific event except to the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. extent permitted under Section 409A. (iv) For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement includingeach payment made after termination of employment, without limitation, each severance payment and including COBRA continuation reimbursement shall payment, will be treated as a right to receive considered one of a series of separate and distinct payments. . (v) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (vi) Any amount that the Executive is entitled to be reimbursed under this Agreement that may be treated as taxable compensation, including any Gross-Up Payment pursuant to Section 10(b), will be reimbursed to the Executive as promptly as practical and in any event not later than sixty (60) days after the last day end of the calendar year after the calendar year in which the expenses are incurred. Any right ; provided that Executive shall have provided a reimbursement request to the Company no later than thirty (30) days prior to the date the reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefitis due. The amount of the expenses eligible for reimbursement during any taxable calendar year will not affect the amount of expenses eligible for reimbursement in any other taxable calendar year. , except as may be required pursuant to an arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code. (vii) The Company shall not be obligated to reimburse Executive for any tax penalty or interest or provide a gross-up in connection with any tax liability of Executive under Section 409A. (viii) Any annual bonus that is earned pursuant to Section 4(b) shall be paid, whether is cash or equity as provided above, between January 1 and March 15 of the year following the year for which such annual bonus was earned; provided, however, that if the Board shall determine that it is administratively impracticable, which may include inability of the Company to gain certification of its financial statements, to make such annual bonus payment by March 15, any such payment shall be made as soon as reasonably practicable after such period and in no event later than December 31 of the year following the year for which such annual bonus was earned. (ix) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. (x) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of termination of Executive’s employment in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made on a monthly basis.” 2. Section 6(c)(vii) of the Employment Agreement is hereby amended to read as follows:

Limitations Under Code Section 409A. (i) Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235(g), would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is In particular, with respect to any lump sum payment otherwise required hereunder, in the intention event of any delay in the payment date as a result of Section 409A(a)(2)(A)(i) and (B)(i) of the parties Code, the Company will adjust the payments to reflect the deferred payment date by crediting interest thereon at the prime rate in effect at the time such amount first becomes payable, as quoted by the Company’s principal bank. (ii) To the extent that payments or any benefits payable to be provided during the Delay Period are considered deferred compensation under this Agreement Section 409A of the Code provided on account of a “separation from service,” and such benefits are not be subject to the additional tax imposed pursuant to otherwise exempt from Section 409A of the Code. To , Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such potential payments costs would otherwise have been paid by the Company or to the extent that such benefits could become subject would otherwise have been provided by the Company at no cost to such SectionExecutive, the parties Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall cooperate to amend be reimbursed or provided by the Company in accordance with the procedures specified herein. (iii) In addition, other provisions of this Agreement with or any other such plan notwithstanding, the goal Company shall have no right to accelerate any such payment or to make any such payment as the result of giving any specific event except to the Executive extent permitted under Section 409A of the economic benefits described herein in a manner that does not result in such tax being imposed. Code. (iv) For purposes of Section 409A, 409A of the Executive’s right to receive installment payments pursuant to this Agreement including, without limitationCode, each severance payment and made after termination of employment, including COBRA continuation reimbursement shall payment, will be treated as a right to receive considered one of a series of separate and distinct payments. . (v) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (vi) Any amount that the Executive is entitled to be reimbursed under this Agreement that may be treated as taxable compensation will be reimbursed to the Executive as promptly as practical and in any event not later than sixty (60) days after the last day end of the calendar year after the calendar year in which the expenses are incurred. Any right ; provided that Executive shall have provided a reimbursement request to the Company no later than thirty (30) days prior to the date the reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefitis due. The amount of the expenses eligible for reimbursement during any taxable calendar year will not affect the amount of expenses eligible for reimbursement in any other taxable calendar year. , except as may be required pursuant to an arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code. (vii) The Company shall not be obligated to reimburse Executive for any tax penalty or interest or provide a gross-up in connection with any tax liability of Executive under Section 409A of the Code. (viii) Any annual bonus that is earned pursuant to Section 4(b) shall be paid, whether in cash or equity as provided above, between January 1 and March 15 of the year following the year for which such annual bonus was earned; provided, however, that if the Board shall determine that it is administratively impracticable, which may include inability of the Company to gain certification of its financial statements, to make such annual bonus payment by March 15, any such payment shall be made as soon as reasonably practicable after such period and in no event later than December 31 of the year following the year for which such annual bonus was earned. (ix) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), except as specifically provided herein, the actual date of payment within the specified period shall be within the sole discretion of the Company. (x) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of termination of Executive’s employment, the payments of such base salary or other compensation shall be made in accordance with the Company’s payroll practices (or other similar term) or, if not payable in accordance with the Company’s payroll practices, on a monthly basis.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the CodeCode (such additional tax, together with any such interest and penalties, are hereinafter referred to as the “Additional Tax”), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial paymentpayment plus interest equal to the rate provided in Section 1274(b)(2)(B) of the Code). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the CodeAdditional Tax. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 2322, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (ai) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (ii) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the CodeCode on the date of Executive’s separation from service with the Company, (ciii) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (div) such delay is required to avoid the imposition payments are not excluded from the application of Section 409A under Treasury Regulations section 1.409A-1(b)(4) or any other applicable provision of the tax set forth in Section 409A(a)(1statute or Treasury Regulations; and (v) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits constituting deferred compensation under Section 409A of the Code upon or following a termination of employment unless such termination of employment is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a termination of employment or like terms shall mean “separation from service.” All expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive (provided that if any such reimbursements constitute taxable income to the Executive, such reimbursements shall be paid no later than March 15th of the calendar year following the calendar year in which the expenses to be reimbursed were incurred), and no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year. For purposes of Section 409A409A of the Code, the Executive’s right to receive any installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty sixty (3060) days following the date of terminationdays”), the actual date of payment within the specified period shall be within the sole discretion of the Company.. In no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Section 409A of the Code be offset by any other payment pursuant to this Agreement or otherwise

Limitations Under Code Section 409A. (i) Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code), (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code ), as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235(g), would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is In particular, with respect to any lump sum payment otherwise required hereunder, in the intention event of any delay in the parties that payment date as a result of Section 409A(a)(2)(A)(i) and (B)(i), the Company will adjust the payments or benefits payable under this Agreement not be subject to reflect the additional tax imposed pursuant to Section 409A of deferred payment date by crediting interest thereon at the Code. prime rate in effect at the time such amount first becomes payable, as quoted by the Company’s principal bank. (ii) To the extent that any benefits to be provided during the Delay Period are considered deferred compensation under Code Section 409A provided on account of a “separation from service,” and such potential payments or benefits could become subject to such Sectionare not otherwise exempt from Section 409A, the parties Executive shall cooperate pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Executive, to amend the extent that such costs would otherwise have been paid by the Company or to the extent that such benefits would otherwise have been provided by the Company at no cost to the Executive, the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in accordance with the procedures specified herein. (iii) In addition, other provisions of this Agreement with or any other such plan notwithstanding, the goal Company shall have no right to accelerate any such payment or to make any such payment as the result of giving any specific event except to the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. extent permitted under Section 409A. (iv) For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement includingeach payment made after termination of employment, without limitation, each severance payment and including COBRA continuation reimbursement shall payment, will be treated as a right to receive considered one of a series of separate and distinct payments. . (v) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (vi) Any amount that the Executive is entitled to be reimbursed under this Agreement that may be treated as taxable compensation, including any gross-up payment, will be reimbursed to the Executive as promptly as practical and in any event not later than sixty (60) days after the last day end of the calendar year after the calendar year in which the expenses are incurred. Any right ; provided that Executive shall have provided a reimbursement request to the Company no later than thirty (30) days prior to the date the reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefitis due. The amount of the expenses eligible for reimbursement during any taxable calendar year will not affect the amount of expenses eligible for reimbursement in any other taxable calendar year. , except as may be required pursuant to an arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code. (vii) The Company shall not be obligated to reimburse Executive for any tax penalty or interest or provide a gross-up in connection with any tax liability of Executive under Section 409A. (viii) Any annual bonus that is earned pursuant to Section 2 shall be paid, whether is cash or equity as provided above, between January 1 and March 15 of the year following the year for which such annual bonus was earned; provided, however, that if the Board shall determine that it is administratively impracticable, which may include inability of the Company to gain certification of its financial statements, to make such annual bonus payment by March 15, any such payment shall be made as soon as reasonably practicable after such period and in no event later than December 31 of the year following the year for which such annual bonus was earned. (ix) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. (x) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of termination of Executive’s employment in accordance with the Company’s payroll practices (or other similar term), the payments of such base salary or other compensation shall be made on a monthly basis.”

Limitations Under Code Section 409A. (i) Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iiisection 1. 409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235(g), would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is In particular, with respect to any lump sum payment otherwise required hereunder, in the intention event of any delay in the payment date as a result of Section 409A(a)(2)(A)(i) and (B)(i) of the parties Code, the Company will adjust the payments to reflect the deferred payment date by crediting interest thereon at the prime rate in effect at the time such amount first becomes payable, as quoted by the Company’s principal bank. (ii) To the extent that payments or any benefits payable to be provided during the Delay Period are considered deferred compensation under this Agreement Section 409A of the Code provided on account of a “separation from service,” and such benefits are not be subject to the additional tax imposed pursuant to otherwise exempt from Section 409A of the Code. To , Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such potential payments costs would otherwise have been paid by the Company or to the extent that such benefits could become subject would otherwise have been provided by the Company at no cost to such SectionExecutive, the parties Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall cooperate to amend be reimbursed or provided by the Company in accordance with the procedures specified herein. (iii) In addition, other provisions of this Agreement with or any other such plan notwithstanding, the goal Company shall have no right to accelerate any such payment or to make any such payment as the result of giving any specific event except to the Executive extent permitted under Section 409A of the economic benefits described herein in a manner that does not result in such tax being imposed. Code. (iv) For purposes of Section 409A409A of the Code, the Executive’s right each payment made after termination of employment, including his premiums charged to receive installment payments continue medical coverage pursuant to the Federal and California State Consolidated Omnibus Budget Reconciliation Act (for the purposes of this Agreement includingAgreement, without limitation“COBRA”), each severance payment and COBRA continuation reimbursement shall will be treated as a right to receive considered one of a series of separate and distinct payments. . (v) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (vi) Any amount that the Executive is entitled to be reimbursed under this Agreement that may be treated as taxable compensation will be reimbursed to the Executive as promptly as practical and in any event not later than sixty (60) days after the last day end of the calendar year after the calendar year in which the expenses are incurred. Any right ; provided that Executive shall have provided a reimbursement request to the Company no later than thirty (30) days prior to the date the reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefitis due. The amount of the expenses eligible for reimbursement during any taxable calendar year will not affect the amount of expenses eligible for reimbursement in any other taxable calendar year. , except as may be required pursuant to an arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code. (vii) The Company shall not be obligated to reimburse Executive for any tax penalty or interest or provide a gross-up in connection with any tax liability of Executive under Section 409A of the Code. (viii) Any annual bonus that is earned pursuant to Section 4(b) shall be paid, whether in cash or equity as provided above, between January 1 and March 15 of the year following the year for which such annual bonus was earned; provided, however, that if the Board shall determine that it is administratively impracticable, which may include inability of the Company to gain certification of its financial statements, to make such annual bonus payment by March 15, any such payment shall be made as soon as reasonably practicable after such period and in no event later than December 31 of the year following the year for which such annual bonus was earned. (ix) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), except as specifically provided herein, the actual date of payment within the specified period shall be within the sole discretion of the Company. (x) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of termination of Executive’s employment, the payments of such base salary or other compensation shall be made in accordance with the Company’s payroll practices (or other similar term) or, if not payable in accordance with the Company’s payroll practices, on a monthly basis.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (a) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code, (b) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (c) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (d) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 23, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x) six (6) months after the Executive’s termination date, (y) the Executive’s death or (z) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.. [Signature page follows]

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of the Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if the Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such SectionSection 409A, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 23, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. (i) Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section Section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235(h), would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one (1) day after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is In particular, with respect to any lump sum payment otherwise required hereunder, in the intention event of any delay in the payment date as a result of Section 409A(a)(2)(A)(i) and (B)(i) of the parties Code, the Company will adjust the payments to reflect the deferred payment date by crediting interest thereon at the prime rate in effect at the time such amount first becomes payable, as quoted by the Company’s principal bank. (ii) To the extent that payments or any benefits payable to be provided during the Delay Period are considered deferred compensation under this Agreement Section 409A of the Code provided on account of a “separation from service,” and such benefits are not be subject to the additional tax imposed pursuant to otherwise exempt from Section 409A of the Code. To , Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such potential payments costs would otherwise have been paid by the Company or to the extent that such benefits could become subject would otherwise have been provided by the Company at no cost to such SectionExecutive, the parties Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall cooperate to amend be reimbursed or provided by the Company in accordance with the procedures specified herein. (iii) In addition, other provisions of this Agreement with or any other such plan notwithstanding, the goal Company shall have no right to accelerate any such payment or to make any such payment as the result of giving any specific event except to the Executive extent permitted under Section 409A of the economic benefits described herein in a manner that does not result in such tax being imposed. Code. (iv) For purposes of Section 409A, 409A of the Executive’s right to receive installment payments pursuant to this Agreement including, without limitationCode, each severance payment and made after termination of employment, including COBRA continuation reimbursement shall payments, will be treated as a right to receive considered one of a series of separate and distinct payments. . (v) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service. (vi) Any amount that the Executive is entitled to be reimbursed under this Agreement that may be treated as taxable compensation will be reimbursed to the Executive as promptly as practical and in any event not later than sixty (60) days after the last day end of the calendar year after the calendar year in which the expenses are incurred. Any right ; provided that Executive shall have provided a reimbursement request to the Company no later than thirty (30) days prior to the date the reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefitis due. The amount of the expenses eligible for reimbursement during any taxable calendar year will not affect the amount of expenses eligible for reimbursement in any other taxable calendar year. , except as may be required pursuant to an arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code. (vii) The Company shall not be obligated to reimburse Executive for any tax penalty or interest or provide a gross-up in connection with any tax liability of Executive under Section 409A of the Code. (viii) Any annual bonus that is earned pursuant to Section 4(b) shall be paid, whether in cash or equity as provided above, between January 1 and March 15 of the year following the year for which such annual bonus was earned; provided, however, that if the Board shall determine that it is administratively impracticable, which may include inability of the Company to gain certification of its financial statements, to make such annual bonus payment by March 15, any such payment shall be made as soon as reasonably practicable after such period and in no event later than December 31 of the year following the year for which such annual bonus was earned. (ix) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. (x) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of termination of Executive’s employment, the payments of such base salary or other compensation shall be made in accordance with the Company’s payroll practices (or other similar term) or, if not payable in accordance with the Company’s payroll practices, on a monthly basis.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (ai) on the date of termination of the Executive’s 's employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (ii) if the Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (ciii) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (div) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months after the Executive’s 's termination date, (y2) the Executive’s 's death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s 's employment with the Company or a subsidiary, any of the Company’s 's stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe "CODE")), (B) if Executive is determined to be a “"specified employee” " within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months after the Executive’s 's termination date, (y2) the Executive’s 's death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such SectionSection 409A, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (a) on the date of termination of Executive’s employment with the Company University or a subsidiary, any of the CompanyUniversity’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code), (b) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (c) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (d) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 2324, would be subject to interest and additional tax imposed pursuant to Section 409A(a409A (a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x) six (6) months after the Executive’s termination date, (y) the Executive’s death or (z) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the CompanyUniversity.

Limitations Under Code Section 409A. Anything in this Agreement Section 5 to the contrary notwithstanding, if (a) on with respect to any payment otherwise required hereunder, in the event of any delay in the payment date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code, (b) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (c) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (d) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application Section 7(g) of this Section 23, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior Agreement (relating to the date that is the earliest six-month delay in payment of (x) six (6) months after the Executive’s termination date, (y) the Executive’s death or (z) such other date certain benefits to Specified Employees as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to required by Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section), the parties shall cooperate Company will adjust the payment to amend this Agreement reflect the deferred payment date by multiplying the payment by the product of the six-month CMT Treasury ▇▇▇▇ annualized yield rate as published by the U.S. Treasury for the date on which such payment would have been made but for the delay multiplied by a fraction, the numerator of which is the number of days by which such payment was delayed and the denominator of which is 365. The Company will pay the adjusted payment at the beginning of the seventh month following Executive’s termination of employment. Notwithstanding the foregoing, if calculation of the amounts payable by such payment date is not administratively practicable due to events beyond the control of Executive (or Executive’s beneficiary or estate) and for reasons that are commercially reasonable, payment will be made as soon as administratively practicable in compliance with Section 409A of the goal Code and the proposed and final Treasury Regulations thereunder, as the same may be amended from time to time (the “Regulations”). In the event of giving Executive’s death during such six-month period, payment will be made in the Executive payroll period next following the economic benefits described herein payroll period in a manner that does not result in such tax being imposedwhich Executive’s death occurs.” 6. For purposes The second sentence of Section 409A6(a) of the Agreement before the colon is amended to read as follows: “At the time Executive’s employment terminates due to Retirement, the Executive’s right to receive installment payments pursuant to this Agreement includingTerm will terminate, without limitation, each severance payment all obligations of the Company and COBRA continuation reimbursement shall be treated as a right to receive a series Executive under Sections 1 through 5 of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will immediately cease except for obligations which expressly continue after termination of employment due to Retirement, and the Company will pay Executive at the time specified in Section 6(d), and Executive will be reimbursed entitled to receive, the Executive as promptly as practical and in any event not later than the last day following:” 7. Section 6(a)(ii) of the calendar year after the calendar year Agreement is amended to read in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.its entirety as follows:

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code. as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 2321, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s 's employment with the Company or a subsidiary, any of the Company’s 's stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the CodeCode (such additional tax, together with any such interest and penalties, are hereinafter referred to as the “Additional Tax”), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s 's termination date, (y2) the Executive’s 's death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial paymentpayment plus interest equal to the rate provided in Section 1274(b)(2)(B) of the Code). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (a) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code, (b) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (c) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (d) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 23, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x) six (6) months after the Executive’s termination date, (y) the Executive’s death or (z) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 23, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. 6. The provisions of this Amendment may be amended and waived only with the prior written consent of the parties hereto. This Amendment may be executed and delivered in one or more counterparts, each of which shall be deemed an original and together shall constitute one and the same instrument. 7. Except as set forth in this Amendment, the Employment Agreement shall remain unchanged and shall continue in full force and effect.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiarySubsidiary, any of the Company’s or Parent’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 23, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (ai) on the date of termination of the Executive’s 's employment with the Company or a subsidiarySubsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (ii) if the Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (ciii) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (div) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 236.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months after the Executive’s 's termination date, (y2) the Executive’s 's death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. (i) Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s 's employment with the Company or a subsidiary, any of the Company’s 's stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section Section 1.409A-1(b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code Code, as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235(g), would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i409A(a)(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) months and one day after the Executive’s 's termination date, (y2) the Executive’s 's death or (z3) such other date (the “Delay Period”) as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is In particular, with respect to any lump sum payment otherwise required hereunder, in the intention event of any delay in the payment date as a result of Section 409A(a)(2)(A)(i) of the parties Code and (B)(i), the Company will adjust the payments to reflect the deferred payment date by crediting interest thereon at the prime rate in effect at the time such amount first becomes payable, as quoted by the Company's principal bank. (ii) To the extent that payments or any benefits payable to be provided during the Delay Period are considered deferred compensation under this Agreement Section 409A of the Code provided on account of a “separation from service,” and such benefits are not be subject to the additional tax imposed pursuant to otherwise exempt from Section 409A of the Code. To , Executive shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse Executive, to the extent that such potential payments costs would otherwise have been paid by the Company or to the extent that such benefits could become subject would otherwise have been provided by the Company at no cost to such SectionExecutive, the parties Company's share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall cooperate to amend be reimbursed or provided by the Company in accordance with the procedures specified herein. (iii) In addition, other provisions of this Agreement with or any other such plan notwithstanding, the goal Company shall have no right to accelerate any such payment or to make any such payment as the result of giving any specific event except to the Executive extent permitted under Section 409A of the economic benefits described herein in a manner that does not result in such tax being imposed. Code. (iv) For purposes of Section 409A, 409A of the Executive’s right to receive installment payments pursuant to this Agreement including, without limitationCode, each severance payment and made after termination of employment, including COBRA continuation reimbursement shall payments, will be treated as a right to receive considered one of a series of separate and distinct payments. . (v) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service. (vi) Any amount that the Executive is entitled to be reimbursed under this Agreement that may be treated as taxable compensation will be reimbursed to the Executive as promptly as practical and in any event not later than sixty (60) days after the last day end of the calendar year after the calendar year in which the expenses are incurred. Any right ; provided that Executive shall have provided a reimbursement request to the Company no later than thirty (30) days prior to the date the reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefitis due. The amount of the expenses eligible for reimbursement during any taxable calendar year will not affect the amount of expenses eligible for reimbursement in any other taxable calendar year. , except as may be required pursuant to an arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code. (vii) The Company shall not be obligated to reimburse Executive for any tax penalty or interest or provide a gross-up in connection with any tax liability of Executive under Section 409A of the Code. (viii) Any annual bonus that is earned pursuant to Section 4(b) shall be paid, whether in cash or equity as provided above, between January 1 and March 15 of the year following the year for which such annual bonus was earned; provided, however, that if the Board shall determine that it is administratively impracticable, which may include inability of the Company to gain certification of its financial statements, to make such annual bonus payment by March 15, any such payment shall be made as soon as reasonably practicable after such period and in no event later than December 31 of the year following the year for which such annual bonus was earned. (ix) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. (x) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or other compensation is to be paid for a specified continuing period of time beyond the date of termination of Executive's employment, the payments of such base salary or other compensation shall be made in accordance with the Company's payroll practices (or other similar term) or, if not payable in accordance with the Company's payroll practices, on a monthly basis.

Limitations Under Code Section 409A. Anything in this Agreement to the contrary notwithstanding, if (aA) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (bthe “Code”)), (B) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (cC) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii1.409A-1 (b)(9)(iii) and (dD) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1409A(a)(l) of the Code as a result of such termination, the Executive would receive any payment that, absent the application of this Section 235.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the CodeCode (such additional tax, together with any such interest and penalties, are hereinafter referred to as the “Additional Tax”), then no such payment shall be payable prior to the date that is the earliest of (x1) six (6) 6 months after the Executive’s termination date, (y2) the Executive’s death or (z3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial paymentpayment plus interest equal to the rate provided in Section 1274(b)(2)(B) of the Code). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed. For purposes of Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

Limitations Under Code Section 409A. Anything in this Agreement Section 5 to the contrary notwithstanding, if (a) on with respect to any payment otherwise required hereunder, in the event of any delay in the payment date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Code, (b) if Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (c) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (d) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent the application Section 7(g) of this Section 23, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior Agreement (relating to the date that is the earliest six-month delay in payment of (x) six (6) months after the Executive’s termination date, (y) the Executive’s death or (z) such other date certain benefits to Specified Employees as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment). It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to required by Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section), the parties shall cooperate Company will adjust the payment to amend this Agreement reflect the deferred payment date by multiplying the payment by the product of the six-month CMT Treasury ▇▇▇▇ annualized yield rate as published by the U.S. Treasury for the date on which such payment would have been made but for the delay multiplied by a fraction, the numerator of which is the number of days by which such payment was delayed and the denominator of which is 365. The Company will pay the adjusted payment at the beginning of the seventh month following Executive’s termination of employment. Notwithstanding the foregoing, if calculation of the amounts payable by such payment date is not administratively practicable due to events beyond the control of Executive (or Executive’s beneficiary or estate) and for reasons that are commercially reasonable, payment will be made as soon as administratively practicable in compliance with Section 409A of the goal Code and the proposed and final Treasury Regulations thereunder, as the same may be amended from time to time (the “Regulations”). In the event of giving Executive’s death during such six-month period, payment will be made in the Executive payroll period next following the economic benefits described herein payroll period in a manner that does not result in such tax being imposedwhich Executive’s death occurs.” 4. For purposes The second sentence of Section 409A6(a) of the Agreement before the colon is amended to read as follows: “At the time Executive’s employment terminates due to Retirement, the Executive’s right to receive installment payments pursuant to this Agreement includingTerm will terminate, without limitation, each severance payment all obligations of the Company and COBRA continuation reimbursement shall be treated as a right to receive a series Executive under Sections 1 through 5 of separate and distinct payments. Any amount that the Executive is entitled to be reimbursed under this Agreement will immediately cease except for obligations which expressly continue after termination of employment due to Retirement, and the Company will pay Executive at the time specified in Section 6(d), and Executive will be reimbursed entitled to receive, the Executive as promptly as practical and in any event not later than the last day following:” 5. Section 6(a)(ii) of the calendar year after the calendar year Agreement is amended to read in which the expenses are incurred. Any right to reimbursement or in kind benefits will not be subject to liquidation or exchange for another benefit. The amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursement in any other taxable year. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.its entirety as follows: