Common use of 409A Clause in Contracts

409A. Notwithstanding anything to the contrary in this Agreement, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intent.

409A. Notwithstanding anything To the maximum extent permitted, this Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code Section 409A (“Section 409A”) but in any event will be interpreted to comply with Section 409A. In the event this Agreement or any benefit paid under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents to the contrary Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in this Agreementits sole discretion (but without an obligation to do so), the parties intend that any amounts payable hereunder to comply with or are exempt from Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreement, a termination of employment means a “separation from service” as defined in Section 409A, each 409A. Each payment made pursuant to any provision of the payments that may be made under this Agreement shall be deemed to be considered a separate payment and not one of a series of payments for purposes of Section 409A. This Agreement shall To the extent any nonqualified deferred compensation payment to Employee could be administeredpaid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, interpreted and construed in a manner that does not result then any such payments will commence or occur in the imposition of additional taxes, penalties or interest under later taxable year to the extent required by Section 409A. The Company and Executive agree to negotiate If upon Employee’s “separation from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in good faith to make amendments Section 409A), then solely to the Agreement, as the parties mutually agree are extent necessary or desirable to comply with Section 409A and avoid the imposition of taxes, penalties or interest taxes under Section 409A. Notwithstanding anything else herein409A, to the extent any Company shall defer payment of the Severance Pay benefits are treated as “nonqualified deferred compensation compensation” subject to Section 409A payable as a result of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for within six (6) months following Executive's "such “separation from service" pursuant to Code § 409A, or, if sooner, ” until Executive's death. Delayed Severance Pay benefits the earlier of (if anyi) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits seventh month following Employee’s “separation from service,” or (ii) ten (10) days after the Company receives written confirmation of Employee’s death. Any such delayed payments shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intentwithout interest.

409A. Notwithstanding anything This Agreement is intended to the contrary in this Agreement, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409A, each of the payments that may and be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to accordance with Section 409A of the Internal Revenue Code of 1986, as amended (the "“Code"”) and the United States Department of Treasury regulations and other guidance issued thereunder (collectively, “Section 409A”). The parties acknowledge and agree that the interpretation of Section 409A and its application to the terms of this Agreement is uncertain and may be subject to change as additional guidance and interpretations become available. Anything to the contrary herein notwithstanding, then all benefits or payments provided by the Company and its subsidiaries and affiliates to the Employee that would be deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A are intended to comply with Section 409A. If, however, any such benefit or payment is deemed to not comply with Section 409A, the Company and the Employee agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereof) so that either (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and 409A will not apply or (ii) if Executive compliance with Section 409A will be achieved. In no event whatsoever shall the Company or its Subsidiaries or Affiliates be liable for any tax, interest or penalties that may be imposed on the Employee by Section 409A of the Code or any damages for failing to comply with Section 409A. Each payment in a series of payments provided to the Employee pursuant to this Agreement will be deemed a separate payment for purposes of Section 409A. In the event that the Employee is determined by the Company to be a "“specified employee" ” for purposes of Code § 409A(a)(2)(B)(iSection 409A at the time of his separation from service with the Company, any payments of nonqualified deferred compensation (after giving effect to any exemptions available under Section 409A) and otherwise payable to the Company determines that delayed commencement of any portion of Employee during the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for first six (6) months following Executive's "his separation from service shall be delayed and paid in a lump sum upon the earlier of (x) the Employee’s date of death, or (y) the first day of the seventh (7th) month following the Employee’s separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits and the balance of the installments (if any) shall will be payable in a lump sum on accordance with their original schedule. To the first business day following the expiration of such six (6) month periodextent any expense, and any remaining Severance Pay benefits due shall be paid as otherwise reimbursement or in-kind benefit provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable lawEmployee constitutes nonqualified deferred compensation for purposes of Section 409A, payment (i) the amount of any expense eligible for reimbursement or the Severance Pay benefits provision of any in-kind benefit with respect to any calendar year shall not affect the amount of expense eligible for reimbursement or the amount of in-kind benefit provided to the Employee in any other calendar year, (ii) the reimbursements for expenses for which the Employee is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in reliance upon Treasury Regulation § 1.409A-l(b)(9which the applicable expense is incurred, and (iii) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a the right to payment or reimbursement or in-kind benefits hereunder may not be subject to liquidation for any other benefit; provided, however, that the foregoing clause (i) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a series of separate payments. The provisions of this Agreement are intended limit related to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted period the arrangement is in accordance with such intenteffect.

409A. Notwithstanding anything to the contrary in this Agreementset forth herein, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409A, each of the payments that may be made and benefits provided under this Agreement shall be deemed to be a separate payment for purposes that constitute “deferred compensation” within the meaning of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) and the "Code")regulations and other guidance thereunder and any state law of similar effect (collectively, then (i“Section 409A”) no such payment shall be made to Executive unless Executive's not commence in connection with your termination of employment constitutes unless and until you have also incurred a "“separation from service" with the Company ” (as such term is defined in Treasury Regulation Section 1.409A-l(h1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to you without causing you to incur the additional 20% tax under Section 409A. It is intended that each installment of severance pay provided for in this Agreement is a separate “payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, it is intended that severance payments set forth in this Agreement satisfy, to the greatest extent possible, the exceptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4) and 1.409A-1(b)(9). If the Company (or, if applicable, the successor entity thereto) determines that any payments or benefits constitute “deferred compensation” under Section 409A and you are, on the termination of service, a “specified employee” of the Company or any successor provision entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payments and benefits shall be delayed until the earlier to occur of: (a) the date that is six months and one day after your Separation From Service, or (b) the date of your death (such applicable date, the “Specified Employee Initial Payment Date”). On the Specified Employee Initial Payment Date, the Company (or the successor entity thereto, as applicable) shall (i) pay to you a lump sum amount equal to the sum of the payments and benefits that you would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of such amounts had not been so delayed pursuant to this Section and (ii) if Executive is determined by commence paying the Company balance of the payments and benefits in accordance with the applicable payment schedules set forth in this Agreement. All reimbursements provided under this Agreement shall be subject to the following requirements: (i) the amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be a "specified employee" provided or the expenses eligible for purposes of Code § 409A(a)(2)(B)(ireimbursement in any other taxable year, (ii) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due all reimbursements shall be paid as otherwise provided soon as administratively practicable, but in Section 3(b)(i). Notwithstanding no event shall any reimbursement be paid after the foregoing, to the maximum extent permitted by applicable law, payment last day of the Severance Pay taxable year following the taxable year in which the expense was incurred, and (iii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for any other benefit. It is intended that all payments and benefits under this Agreement shall either comply with or be exempt from the requirements of Section 409A, and any ambiguity contained herein shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intent.manner so as to avoid adverse personal tax consequences under Section 409A.

409A. Notwithstanding anything This Agreement is intended to the contrary in this Agreement, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409A, each 409A of the payments Code, where applicable, and will be interpreted and applied in a manner consistent with that may be made under this Agreement shall be deemed to be intention. Toward that end, unless permitted sooner by Section 409A of the Code, if the Executive is designated as a separate “Specified Employee” as of the date of his “Separation from Service,” the payment of amounts that are treated as deferred compensation for purposes of Section 409A. This 409A of the Code and are payable solely on account of the Executive’s Separation from Service that would otherwise be paid during the six-month period following the Executive’s Separation from Service will be deferred until and become payable on the first day of the seventh month following such Separation from Service. For purposes hereof, the terms “Specified Employee” and “Separation from Service” will have the same meanings as such terms under Section 409A of the Code and the regulations thereunder. If other payments of money or other benefits due to the Executive under this Agreement shall or otherwise would cause the application of an accelerated or additional tax under Section 409A of the Code, the payments or other benefits will be administereddeferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, interpreted and construed or otherwise such payment or other benefits will be restructured, to the extent possible, in a manner that does not cause such an accelerated or additional tax or result in the imposition of a material additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments cost to the AgreementCompany. If, as after the parties mutually agree are necessary application of the preceding paragraph, in the event that it is determined that any payment, coverage or desirable to avoid the imposition of taxes, penalties benefit due or interest under Section 409A. Notwithstanding anything else herein, owing to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation Executive pursuant to this Agreement is subject to the excise tax imposed by Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and or any successor provision theretothereof or any interest or penalties, including interest imposed under Section 409A(1)(B)(i)(I) of the Code, incurred by the Executive as a result of the application of such provision, the Employers, within 30 days thereafter, shall pay to the Executive, in addition to any other payment, coverage or benefit due and owing under this Agreement, an amount (the “409A Payment”) that will result in the Executive's net after tax position, after taking into account any interest, penalties or taxes imposed on the amounts paid under this Section 6(b), being no less advantageous to the Executive than the net after tax position to the Executive that would have been obtained had Section 409A of the Code not been applicable to such payment, coverage or benefits. The amount of the 409A Payment will be calculated by the Employer’s independent accounting firm, in consultation with the Employer’s outside legal counsel. For purposes of making the calculations required by this Section, the accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 409A of the Code, provided that the accounting firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). If the precise amount of the 409A Payment cannot be determined on the date it is to be paid, an amount equal to the best estimate of the 409A Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Employers will pay any additional amount to the Executive or the Executive will pay any excess amount to the Employers, as the case may be. If subsequently the IRS claims that any additional amounts are owing, an additional 409A Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the 409A Payment, the Executive will provide to the Employers any information reasonably requested by the Employers relating to the tax and penalties, the Executive will take those actions as the Employers reasonably requests to contest the tax and penalties, cooperate in good faith with the Employers to effectively contest the tax and penalties and permit the Employers to participate in any proceedings contesting the tax and penalties. The Employers will bear and pay directly all costs and expenses (including any interest or additional penalties), and (ii) if indemnify and hold the Executive is harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion amount of the Severance Benefits is required in order tax or penalties are not properly owed, the Executive will refund to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion the Employers the related amount of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intentPayment.

409A. Notwithstanding anything This Agreement is intended to the contrary in this Agreement, the parties intend provide payments that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes and/or that comply with the provisions of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "“Code"”) and related regulations and Treasury pronouncements (“Section 409A”), then and this Agreement shall be interpreted accordingly (i) no such it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause Executive to Executive unless incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a “separate payment” within the meaning of the Section 409A. All references herein to Executive's ’s “termination of employment constitutes a "employment” or other similar term shall refer to Executive’s “separation from service" with ” within the Company (as such term is defined in Treasury Regulation meaning of Section 409A and Treas. Reg. Section 1.409A-l(h). Notwithstanding anything herein to the contrary, if on the date of Executive’s separation from service Executive is a “specified employee,” as defined in Section 409A, then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the additional tax provided by Section 409A(a)(1)(B) and any successor provision theretoof the Code if not delayed as required by Section 409A(a)(2)(B)(i) of the Code shall be delayed until the first (1st) business day of the seventh (7th) month following Executive’s separation from service date (or, if earlier, Executive’s date of death), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement total of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) amounts shall be payable in paid as a lump sum on such date. For purposes of clarification, any portion of any separation allowance or other payment due to Executive under this Agreement that is not considered deferred compensation under Section 409A through either the first business day following “short-term deferral” exception pursuant to Treasury Reg. 1.409A-l(b)(4) or the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i)“separation pay” exception pursuant to Treasury Reg. Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with will not be subject to the 6 month delay described in this paragraph as provided under Section 409A. With respect to separation pay plansany expense, reimbursement or in-kind benefit provided pursuant to this Agreement that constitutes a “deferral of compensation” within the meaning of Section 409A, (i) the expenses eligible for reimbursement or Treasury Regulation § 1.409Ain-l(b)(4kind benefits provided to Executive must be incurred during the Employment Period (or applicable survival period). The Severance Pay , (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be treated as a made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (iv) the right to a series payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Executive acknowledges and agrees that Executive has obtained no advice from the Company or any of separate payments. The provisions its affiliates, or any of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limitedtheir respective officers, construeddirectors, employees, subsidiaries, affiliates, agents, attorneys or other representatives, and interpreted that none of such persons or entities have made any representation regarding the tax consequences, if any, of Executive’s receipt of the payments, benefits and other consideration provided for in accordance with such intentthis Agreement. Executive further acknowledges and agrees that Executive is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Executive is, or may become, obligated to pay on account of any payments made and other consideration provided to Executive under this Agreement.

409A. Notwithstanding anything To the maximum extent permitted, the Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code Section 409A (“Section 409A”) but in any event will be interpreted to comply with Section 409A. In the event this Agreement or any benefit paid under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents to the contrary Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in this Agreementits sole discretion (but without an obligation to do so), the parties intend that any amounts payable hereunder to comply with or are exempt from Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreement, a termination of employment means a “separation from service” as defined in Section 409A, each 409A. Each payment made pursuant to any provision of the payments that may be made under this Agreement shall be deemed to be considered a separate payment and not one of a series of payments for purposes of Section 409A. This Agreement shall To the extent any nonqualified deferred compensation payment to Employee could be administeredpaid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, interpreted and construed in a manner that does not result then any such payments will commence or occur in the imposition of additional taxes, penalties or interest under later taxable year to the extent required by Section 409A. The Company and Executive agree to negotiate If upon Employee’s “separation from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in good faith to make amendments Section 409A), then solely to the Agreement, as the parties mutually agree are extent necessary or desirable to comply with Section 409A and avoid the imposition of taxes, penalties or interest taxes under Section 409A. Notwithstanding anything else herein409A, to the extent any Company shall defer payment of the Severance Pay benefits are treated as “nonqualified deferred compensation compensation” subject to Section 409A payable as a result of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for within six (6) months following Executive's "such “separation from service" pursuant to Code § 409A, or, if sooner, ” until Executive's death. Delayed Severance Pay benefits the earlier of (if anyi) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits seventh month following Employee’s “separation from service,” or (ii) ten (10) days after the Company receives written confirmation of Employee’s death. Any such delayed payments shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intentwithout interest.

409A. The Plan and this Agreement are designed and administered to be exempt from Section 409A of the Code. To the extent that the Administrator or any governmental agency determines that any PSU granted hereunder is subject to Section 409A of the Code, the Agreement shall incorporate (or shall be amended to incorporate) the terms and conditions necessary to avoid the consequences specified in Section 409A(a) of the Code. Notwithstanding anything in this Agreement to the contrary in contrary, if any amounts that become due under this Agreement on account of Xxxxxxx’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code, payment of such amounts shall not commence until Grantee incurs a Separation From Service. If, at the time of Xxxxxxx’s Separation From Service under this Agreement, Grantee is a “specified employee” (within the parties intend that meaning of Section 409A of the Code), any amounts payable hereunder comply with or are exempt from Section 409A. For purposes that constitute “nonqualified deferred compensation” within the meaning of Section 409A, each 409A of the Code that become payable on account of Grantee’s Separation From Service will not be paid until after the end of the sixth calendar month beginning after Xxxxxxx’s Separation From Service (“409A Suspension Period”) to the extent necessary to avoid the imposition of taxes under Section 409A of the Code. Within 14 calendar days after the end of the 409A Suspension Period, Grantee shall be paid a lump sum payment equal to any payments that may be made delayed because of the preceding sentence, without interest. Thereafter, Grantee shall receive any remaining benefits as if there had not been an earlier delay. Each payment or benefit payable under this Agreement shall be deemed is intended to be constitute a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intent.

409A. Notwithstanding anything to the contrary in this Agreement, The intent of the parties intend is that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409A, each of the payments that may be made and benefits under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments which are subject to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition provisions of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code code of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively "CodeCode Section 409A")) shall comply with Code Section 409A and, then accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the Employee notifies the Employer (iwith specificity as to the reason therefor) no that the Employee believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Employee to incur any additional tax or interest under Code Section 409A and the Employer concurs with such payment belief or the Employer (without any obligation whatsoever to do so) independently makes such determination, the Employer shall, after consulting with the Employee, reform such provision to attempt to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to Executive unless Executive's the maximum extent reasonably possible, maintain the original intent and economic benefit to the Employee and the Employer of the applicable provision without violating the provisions of Code Section 409A. A termination of employment constitutes shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits subject to Code Section 409A upon or following a termination of employment unless such termination is also a "separation Separation from serviceService" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and Exhibit B hereto and, for purposes of any successor such provision thereto)of this Agreement, and (ii) if Executive references to a "termination," "termination of employment" or like terms shall mean such "Separation from Service." If the Employee is determined by deemed on the Company date of termination to be a "specified employee" for purposes within the meaning of that term under Code § 409A(a)(2)(B)(i) and Section 409A(a)(2)(B), then with regard to any payment or the Company determines that delayed commencement provision of any portion benefit that is considered deferred compensation under Code Section 409A payable on account of a "Separation from Service," no such payment or benefit shall be made or provided prior to the earlier of (A) the expiration of the Severance Benefits is six (6)-month period measured from the date of such "Separation from Service" of the Employee, and (B) the date of the Employee’s death, to the extent required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i)Section 409A. Upon the expiration of the foregoing delay period, commencement all payments and benefits delayed pursuant to this Section 18(x) (whether they would have otherwise been payable in a single sum or in installments in the absence of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if anydelay) shall be payable paid or reimbursed to the Employee in a lump sum on the first business day following the expiration of such six (6) month periodsum, and any remaining Severance Pay payments and benefits due under this Agreement shall be paid as otherwise or provided in accordance with the normal payment dates specified for them herein. For purposes of Code Section 3(b)(i). Notwithstanding 409A, the foregoing, Employee’s right to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect receive any installment payments pursuant to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits this Agreement shall be treated as a right to receive a series of separate and distinct payments. The provisions Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Employer. Notwithstanding any other provision of this Agreement are intended to comply with the applicable requirements contrary, in no event shall any payment under this Agreement that constitutes "nonqualified deferred compensation" for purposes of Code § Section 409A and shall be limited, construed, and interpreted in accordance with such intent.subject to offset by any other amount unless otherwise permitted by Code Section 409A.

409A. Notwithstanding anything to the contrary in this Agreement, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409Athis letter, each a termination of employment will be determined consistent with the payments that may be made under this Agreement shall be deemed rules relating to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed “separation from service” as defined in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986I 986, as amended amended, and the regulations thereunder (“Section 409A”). Notwithstanding anything else provided herein, to the "Code")extent any payments provided under this letter agreement in connection with your separation from service constitute deferred compensation subject to Section 409A, then and you are deemed at the time of such termination of full-time employment to be a “specified employee” under Section 409A, then, in order to comply with Section 409A, such payment shall not be made or commence until the earlier of (i) no the day after the expiration of the 6-month period measured from your separation from service from the Company or (ii) the date of your death following such a separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you including, without limitation, the additional tax for which you would otherwise be liable under Section 409A(a)(l)(B) in the absence of such a deferral. The first payment thereof will include a catch-up payment covering the amount that would have otherwise been paid during the period between your termination of full-time employment and the first payment date but for the application of this provision, and the balance of the installments (if any) will be payable in accordance with their original schedule. To the extent that any provision of this letter agreement is ambiguous as to its compliance with Section 409A, the provision will be read in such a manner so that all payments hereunder comply with Section 409A. To the extent any payment under this letter agreement may be classified as a “short-term deferral” within the meaning of Section 409A, such payment shall be made deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. Payments pursuant to Executive unless Executive's termination this letter agreement are intended to constitute separate payments for purposes of employment Section l.409A-2(b)(2) of the Treasury Regulations. Notwithstanding any provision hereof to the contrary, if any payment constitutes a "separation from service" with nonqualified deferred compensation subject to Section 409A, and such payment would otherwise be paid (assuming the Company release of claims described in Section 10 is given) prior to the last day on which the release could become irrevocable assuming the latest possible execution and delivery of the release (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision theretolast day, the “Release Deadline”), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) employment termination date and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i)Release Deadline span two calendar years, commencement of then such portion of the Severance Pay benefits will payments shall be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, ormade, if soonerever, until Executive's death. Delayed Severance Pay benefits (only in the second calendar year, even if any) shall be payable the release becomes irrevocable in a lump sum on the first business day following the expiration of such six calendar year (6) month period, and any remaining Severance Pay benefits payments due shall be paid as otherwise or provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intentthe normal payment dates specified for them herein).

409A. Notwithstanding anything This Agreement is intended to the contrary in this Agreement, the parties intend provide payments that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes and/or that comply with the provisions of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and related regulations and Treasury pronouncements ("Section 409A"), then and this Agreement shall be interpreted accordingly (i) no such it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause Executive to Executive unless incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a "separate payment" within the meaning of the Section 409A. All references herein to Executive's "termination of employment constitutes a "separation from serviceemployment" with the Company (as such or other similar term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company shall refer to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant within the meaning of Section 409A and Treas. Reg. Section 1.409A-l(h). Notwithstanding anything herein to Code § the contrary, if on the date of Executive's separation from service Executive is a "specified employee," as defined in Section 409A, then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the additional tax provided by Section 409A(a)(1)(B) of the Code if not delayed as required by Section 409A(a)(2)(B)(i) of the Code shall be delayed until the first (1st) business day of the seventh (7th) month following Executive's separation from service date (or, if soonerearlier, until Executive's date of death. Delayed Severance Pay benefits (if any) ), and the total of such delayed amounts shall be payable in paid as a lump sum on such date. For purposes of clarification, any portion of any separation allowance or other payment due to Executive under this Agreement that is not considered deferred compensation under Section 409A through either the first business day following "short- term deferral" exception pursuant to Treasury Reg. 1.409A-l(b)(4) or the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i)"separation pay" exception pursuant to Treasury Reg. Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with will not be subject to the 6 month delay described in this paragraph as provided under Section 409A. With respect to separation pay plansany expense, reimbursement or in-kind benefit provided pursuant to this Agreement that constitutes a "deferral of compensation" within the meaning of Section 409A, (i) the expenses eligible for reimbursement or Treasury Regulation § 1.409Ain-l(b)(4kind benefits provided to Executive must be incurred during the Employment Period (or applicable survival period). The Severance Pay , (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be treated as a made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (iv) the right to a series payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Executive acknowledges and agrees that Executive has obtained no advice from the Company or any of separate payments. The provisions its affiliates, or any of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limitedtheir respective officers, construeddirectors, employees, subsidiaries, affiliates, agents, attorneys or other representatives, and interpreted that none of such persons or entities have made any representation regarding the tax consequences, if any, of Executive's receipt of the payments, benefits and other consideration provided for in accordance with such intentthis Agreement. Executive further acknowledges and agrees that Executive is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Executive is, or may become, obligated to pay on account of any payments made and other consideration provided to Executive under this Agreement.

409A. Notwithstanding anything to You and the contrary in this Agreement, Company agree that the terms and conditions hereof are intended by the parties intend that any amounts payable hereunder to comply with or are exempt from Section 409A. For purposes of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Code and that, accordingly, you shall not report on your personal income tax returns that any payment under Section 1 hereof will be subject to an excise tax or an additional income tax by application of Section 409A of the Code. You shall notify the Company in writing of any claim by the Internal Revenue Code Service that, if successful, would require the payment by the Company of 1986, as amended (the "Code"), then (igross-up payment under Section 10(d) no such payment of the Employment Agreement. Such notification shall be made given as soon as practicable but no later than thirty (30) business days after you receive written notification of such claim and shall apprise the Company of the nature of such claim in reasonable detail and the date on which such claim is requested to Executive unless Executive's termination be paid. You shall not pay such claim prior to the expiration of employment constitutes a "separation from service" with the thirty (30) day period following the date on which you give such notice to the Company (as or such term shorter period ending on the date that any payment of taxes with respect to such claim is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision theretodue), and (ii) if Executive is determined by . If the Company notifies you in writing prior to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six period that it desires to contest such claim, you shall: (6i) month periodgive the Company all available information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoingincluding, to the maximum extent permitted by applicable lawwithout limitation, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (accepting legal representation with respect to separation such claim by an attorney selected by the Company and reasonably acceptable to you and/or ceasing all efforts to contest such claim; (iii) cooperate in all reasonably respects with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceeding relating to such claim; provided, however, that the Company shall bear and pay plansdirectly all reasonable costs and expenses (including attorney fees and additional interest and penalties) incurred by you and it in connection with such contest and, without limiting Section 10(d) of the Employment Agreement, shall indemnify and hold you harmless, on an after-tax basis, from any excise tax or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated income tax (including interest and penalties with respect thereto) and other costs, expenses or liabilities imposed on you as a right to a series result of separate paymentssuch contest, representation and payment of taxes, interest, penalties, costs and expenses. The Without limiting the foregoing provisions of this Agreement are intended to comply Letter Agreement, the Company shall control all proceedings taken in connection with such contest, provided that such is pursued in a diligent and professional manner, and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the applicable requirements taxing authority in respect of Code § 409A such claim and may, at its sole option, either direct you to pay the tax claimed and sxx for a refund or contest the claim in any permissible manner, and you agree to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine and direct; provided, however, that if the Company directs you to pay such claim and sxx for a refund, the Company shall pay such claimed amount to you prior to you making such payment, and, without limiting Section 10(d) of the Employment Agreement, shall indemnify and hold you harmless, on an after-tax basis, from any excise tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment; and provided, further, that any extension of the statute of limitations relating to payment of taxes for your taxable year with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limitedlimited to issues with respect to which a gross-up payment would be payable hereunder and you shall be entitled, construedin your sole discretion, to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. It is understood and interpreted agreed that nothing in accordance with such intentthis paragraph 20 shall require you not to pay any tax (or interest and penalties thereon) imposed under Section 409A when due or shall limit the Company’s obligations under Section 10(d) of the Employment Agreement, including the Company’s obligation to pay you the 409A Gross-Up Payment (as defined in Section 10(d) of the Employment Agreement) prior to the date on which any excise tax or income tax (and interest and penalties thereon) imposed by Section 409A is due to be paid.

409A. Notwithstanding anything to It is the contrary in intent of the parties that the provisions of this AgreementPlan comply with, or satisfy an exemption from, section 409A of the Code, as specified below. Accordingly, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409A, each of the payments that may this Plan be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition operated consistent with such requirements of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid the application of penalty taxes under section 409A to the extent reasonably practicable. The Company will neither cause nor permit: (a) any payment, benefit or consideration to be substituted for a prohibited distribution benefit that is payable under Code § 409A(a)(2)(B)(i), commencement this Plan if such action would result in the failure of such portion any amount that is subject to section 409A of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of section 409A of the Code; or (b) any adjustments to any equity interest to be made in a manner that would result in the equity interest becoming subject to section 409A of the Code § unless, after such adjustment, the equity interest is in compliance with the requirements of section 409A of the Code to the extent applicable. Notwithstanding any provision of this Plan to the contrary, if Executive is a “Specified Employee” within the meaning of section 409A of the Code as of Executive’s Qualifying Termination date, then any amounts or benefits which are payable under this Plan upon Executive’s "Separation from Service" (within the meaning of section 409A), other than due to death, which are subject to the provisions of section 409A and shall be limited, construednot otherwise excluded under section 409A, and interpreted would otherwise be payable during the first six (6)-month period following such Separation from Service, will be paid on the day that is (a) six (6) months and one (1) day after the date after Executive’s Qualifying Termination date or (b) follows Executive’s date of death, if earlier. The cash severance benefits in Section 2(a), the accrued obligations under Section 2(b), the pro-rata earned bonus under Section 2(c), the welfare benefit coverage under Section 2(d), the outplacement services under Section 2(e) and the Target Bonus payout under Section 3 are excluded from section 409A. The legal expense provision under Section 2(f) (and the welfare benefit coverage under Section 2(d) if deemed to be subject to section 409A) are intended to qualify as eligible reimbursement arrangements under Treasury Regulation § 1.409A-3(i)(1)(iv) and will be reimbursed in accordance with the requirements of such intentregulation such that any reimbursements will be deemed payable at a specified time or on a fixed schedule relative to a permissible payment event. The equity compensation provided pursuant to Section 2(g) and retention awards provided pursuant to Section 2(h) are subject to section 409A of the Code to the extent provided under the applicable Equity Plan or retention award agreement, as applicable.

409A. Notwithstanding anything to the contrary in this Agreement, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409A, each of the no payments that may be made under contemplated by this Agreement shall will be deemed to be a separate payment for purposes paid during the six-month period following the Participant’s termination of Section 409A. This Agreement shall be administeredservice unless the Company determines, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in its good faith judgment, that paying such amounts at the time or times indicated in this Section would not cause the Participant to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest incur an additional tax under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "“Code"), then ”) and related Department of Treasury guidance (iincluding such Department of Treasury guidance as may be issued after the Grant Date) no (in which case such payment amounts shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with paid at the Company (as such term is defined time or times indicated in Treasury Regulation Section 1.409A-l(h) and any successor provision theretothis Section), and (ii) if Executive is determined by . If the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement payment of any portion amounts are delayed as a result of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i)previous sentence, commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration end of such six (6) the six-month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, Company will pay the Participant a lump-sum amount equal to the maximum extent permitted by applicable lawamounts that would have otherwise been previously paid to the Participant under this Agreement during such six month period. Additionally, payment in the event that following the Grant Date the Company reasonably determines that any compensation or benefits payable under this Agreement may be subject to Section 409A of the Severance Pay Code, the Company shall adopt such amendments to this Agreement or adopt other policies or procedures (including amendments, policies and procedures with retroactive effective), or take any other commercially reasonable actions necessary or appropriate to (x) exempt the compensation and benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (payable under this Agreement from Section 409A of the Code and/or preserve the intended tax treatment of the compensation and benefits provided with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to or (y) comply with the applicable requirements of Section 409A of the Code § 409A and shall be limited, construed, and interpreted in accordance with such intentrelated Department of Treasury guidance.

409A. Notwithstanding anything herein to the contrary in this Agreementcontrary, to the parties intend that any maximum extent permitted by applicable law, amounts payable hereunder comply with or are exempt from to Executive pursuant to Section 409A. For purposes of Section 409A, each of the payments that may 8(c) herein shall be made under in reliance upon Treas. Reg. Section 1.409A-1(b)(9) (Separation Pay Plans) or Treas. Reg. Section 1.409A-1(b)(4) (Short-Term Deferrals). For this Agreement purpose each monthly payment shall be deemed to be considered a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else hereindistinct installment payment. However, to the extent any of the Severance Pay benefits such payments are treated as nonqualified non-qualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "“Code"”), then (i) no such payment amount shall be made payable pursuant to Executive Section 8(c) unless Executive's ’s termination of employment constitutes a "“separation from service" ” within the meaning of Treas. Reg. Section 1.409A-1(h) and (ii) if Executive is deemed at the time of Executive’s separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent delayed commencement of any portion of the termination benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Executive’s termination benefits shall not be provided to Executive prior to the earlier of (A) the expiration of the six-month period measured from the date of Executive’s “separation from service” with the Company (as such term is defined in the Treasury Regulation Regulations issued under Section 1.409A-l(h409A of the Code) or (B) the date of Executive’s death. Upon the earlier of such dates, all payments deferred pursuant to this Section 32 shall be paid in a lump sum to Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein. The determination of whether Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of Executive’s separation from service shall made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treas. Reg. Section 1.409A-1(i) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intent.

409A. It is intended that the payments and benefits under this Agreement comply with Section 409A of the Code (together with the Treasury Regulations relating thereto, “Section 409A”), or satisfy the requirements for an exemption to Section 409A, in each case, to the extent applicable to this Agreement and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith (or to be in satisfaction of an exemption therefrom). Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, the Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement, no Termination Date shall be deemed to have occurred, and no payment otherwise payable upon a termination of the Executive’s employment shall be paid to the Executive under this Agreement unless and until the Executive’s termination of employment constitutes a “separation from service” from the Company within the meaning of Section 409A (a “Separation from Service”). Any payments described in this Agreement that qualify for the “short-term deferral” exception from Section 409A as described in Treasury Regulation Section 1.409A-1(b)(4) will be paid under such exception. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii) and the application of the short-term deferral exception), each payment under this Agreement will be treated as a separate payment. Notwithstanding anything to the contrary in this Agreement, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409A, each of the payments that may be made Agreement (whether under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else hereinotherwise), to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits payments to be made to the Executive upon his Separation from Service is required in order to avoid a prohibited distribution payment under Code § Section 409A(a)(2)(B)(i)) of the Code, commencement of such portion of the Severance Pay benefits will payments shall be delayed for and paid on the first business day after the earlier of (i) the date that is six (6) months following such Separation from Service and (ii) the Executive's "separation from service" pursuant ’s death. Notwithstanding anything contained herein to Code § the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on amounts reimbursable to the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due Executive under this Agreement shall be paid as otherwise to the Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to the Executive) during any one year may not affect amounts reimbursable or provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall any subsequent year and may not be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) liquidated or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intentexchanged for any other benefit.

409A. Notwithstanding anything This Agreement is intended to the contrary in this Agreement, the parties intend provide payments that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes and/or that comply with the provisions of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "“Code"”) and related regulations and Treasury pronouncements (“Section 409A”), then and this Agreement shall be interpreted accordingly (i) no such it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause Employee to Executive unless Executive's incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a “separate payment” within the meaning of the Section 409A. All references herein to Employee’s “termination of employment constitutes a "employment” or other similar term shall refer to Employee’s “separation from service" with ” within the Company (meaning of Section 409A and Treas. Reg. Section 1.409A-1(h). Notwithstanding anything herein to the contrary, if on the date of Employee’s separation from service Employee is a “specified employee,” as such term is defined in Treasury Regulation Section 1.409A-l(h409A, then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the additional tax provided by Section 409A(a)(1)(B) and any successor provision theretoof the Code if not delayed as required by Section 409A(a)(2)(B)(i) of the Code shall be delayed until the first (1st) business day of the seventh (7th) month following Employee’s separation from service date (or, if earlier, Employee’s date of death), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement total of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) amounts shall be payable in paid as a lump sum on such date. For purposes of clarification, any portion of any separation allowance or other payment due to Employee under this Agreement that is not considered deferred compensation under Section 409A through either the first business day following “short-term deferral” exception pursuant to Treasury Reg. 1.409A-1(b)(4) or the expiration of such six (6“separation pay” exception pursuant to Treasury Reg. 1.409A-1(b)(9) month period, and any remaining Severance Pay benefits due shall will not be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, subject to the maximum extent permitted by 6 month delay described in this paragraph as provided under Section 409A. With respect to any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that constitutes a “deferral of compensation” within the meaning of Section 409A, (i) the expenses eligible for reimbursement or in-kind benefits provided to Employee must be incurred during the Employment Period (or applicable lawsurvival period), payment (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Employee during any calendar year will not affect the Severance Pay amount of expenses eligible for reimbursement or in-kind benefits provided to Employee in any other calendar year, (iii) the reimbursements for expenses for which Employee is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in reliance upon Treasury Regulation § 1.409A-l(b)(9which the applicable expense is incurred, and (iv) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a the right to a series payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Employee acknowledges and agrees that Employee has obtained no advice from the Company or any of separate payments. The provisions its affiliates, or any of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limitedtheir respective officers, construeddirectors, employees, subsidiaries, affiliates, agents, attorneys or other representatives, and interpreted that none of such persons or entities have made any representation regarding the tax consequences, if any, of Employee’s receipt of the payments, benefits and other consideration provided for in accordance with such intentthis Agreement. Employee further acknowledges and agrees that Employee is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Employee under this Agreement. Employee agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Employee is, or may become, obligated to pay on account of any payments made and other consideration provided to Employee under this Agreement.

409A. Notwithstanding anything This Agreement is intended to the contrary in this Agreement, the parties intend provide payments that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes and/or that comply with the provisions of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "“Code"”) and related regulations and Treasury pronouncements (“Section 409A”), then and this Agreement shall be interpreted accordingly (i) no such it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause Executive to Executive unless incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a “separate payment” within the meaning of the Section 409A. All references herein to Executive's ’s “termination of employment constitutes a "employment” or other similar term shall refer to Executive’s “separation from service" with ” within the Company (meaning of Section 409A and Treas. Reg. Section 1.409A-1(h). Notwithstanding anything herein to the contrary, if on the date of Executive’s separation from service Executive is a “specified employee,” as such term is defined in Treasury Regulation Section 1.409A-l(h409A, then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the additional tax provided by Section 409A(a)(1)(B) and any successor provision theretoof the Code if not delayed as required by Section 409A(a)(2)(B)(i) of the Code shall be delayed until the first (1st) business day of the seventh (7th) month following Executive’s separation from service date (or, if earlier, Executive’s date of death), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement total of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) amounts shall be payable in paid as a lump sum on such date. For purposes of clarification, any portion of any separation allowance or other payment due to Executive under this Agreement that is not considered deferred compensation under Section 409A through either the first business day following “short-term deferral” exception pursuant to Treasury Reg. 1.409A-1(b)(4) or the expiration of such six (6“separation pay” exception pursuant to Treasury Reg. 1.409A-1(b)(9) month period, and any remaining Severance Pay benefits due shall will not be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, subject to the maximum extent permitted by 6 month delay described in this paragraph as provided under Section 409A. With respect to any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that constitutes a “deferral of compensation” within the meaning of Section 409A, (i) the expenses eligible for reimbursement or in-kind benefits provided to Executive must be incurred during the Employment Period (or applicable lawsurvival period), payment (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the Severance Pay amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in reliance upon Treasury Regulation § 1.409A-l(b)(9which the applicable expense is incurred, and (iv) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a the right to a series payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Executive acknowledges and agrees that Executive has obtained no advice from the Company or any of separate payments. The provisions its affiliates, or any of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limitedtheir respective officers, construeddirectors, employees, subsidiaries, affiliates, agents, attorneys or other representatives, and interpreted that none of such persons or entities have made any representation regarding the tax consequences, if any, of Executive’s receipt of the payments, benefits and other consideration provided for in accordance with such intentthis Agreement. Executive further acknowledges and agrees that Executive is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Executive is, or may become, obligated to pay on account of any payments made and other consideration provided to Executive under this Agreement.

409A. Notwithstanding anything to the contrary in this Agreement, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to Execution Version Employment Agreement Xxxx Xxxxxxx negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intent.

409A. It is intended that the terms of this Agreement comply with Section 409A of the Code and related Treasury regulations (“Section 409A”) or an exemption therefrom, and the terms of this Agreement will be interpreted accordingly; provided, however, that the Company, the Company’s affiliates, and their respective employees, officers, directors, agents and representatives (including, without limitation, legal counsel) will not have any liability to Executive with respect to any taxes, penalties, interest or other costs or expenses Executive or any related party may incur with respect to or as a result of Section 409A or for damages for failing to comply with Section 409A. Notwithstanding anything any provision to the contrary in this Agreement, the parties intend that with respect to any amounts payable hereunder comply with or under this Agreement that are exempt from Section 409A. For determined to be deferred compensation for purposes of Section 409A and payable as a result of Executive’s termination of employment, Executive shall not be deemed to have terminated employment unless and until Executive has experienced a “separation from service” (as that term is used in Section 409A, each of the payments that may ). Each amount to be made paid or benefit to be provided under this Agreement shall be deemed to be construed as a separate and distinct payment for purposes of Section 409A. This Agreement Any reimbursements or in-kind benefits provided to or for the benefit of Executive that constitute deferred compensation for purposes of Section 409A shall be administered, interpreted and construed provided in a manner that does complies with Treasury Regulation Section 1.409A-3(i)(1)(iv). Accordingly, (a) all such reimbursements will be made not result later than the last day of the calendar year after the calendar year in which the imposition expenses were incurred, (b) any right to such reimbursements or in-kind benefits will not be subject to liquidation or exchange for another benefit, and (c) the amount of additional taxesthe expenses eligible for reimbursement, penalties or interest under Section 409A. The Company the amount of any in-kind benefit provided, during any taxable year will not affect the amount of expenses eligible for reimbursement, or the in-kind benefits provided, in any other taxable year. Without limiting the foregoing and Executive agree to negotiate in good faith to make amendments notwithstanding anything contained herein to the Agreementcontrary, as on and after the parties mutually agree are necessary date on which the Company’s stock becomes publicly traded on an established securities market or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else hereinotherwise, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement or any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to other arrangement between Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of during the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months month period immediately following Executive's "’s separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) service shall instead be payable in a lump sum paid on the first business day after the date that is six months following the expiration Executive’s separation from service (or, if earlier, Executive’s date of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(ideath). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intent.

409A. Notwithstanding anything (a)It is intended that this Agreement will comply with Section 409A and Section 457A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and guidelines promulgated thereunder (collectively, “Section 409A”), to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A or Section 457a, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure to act pursuant to this Section 12.14 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A or Section 457A of the Code. (b)Notwithstanding any provision to the contrary in this Agreement, if the parties intend Executive is deemed on the date of his or her “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment or benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service” that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after taking into account any amounts applicable exceptions to such requirement), such payment or benefit shall be made or provided on the date that is the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive's “separation from service,” or (ii) the date of the Executive's death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 12.14 (whether they would have otherwise been payable hereunder comply in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. (c)With respect to any reimbursement or are exempt from Section 409A. For in-kind benefit arrangements of the Company and its subsidiaries that constitute deferred compensation for purposes of Section 409A, each of except as otherwise permitted by Section 409A, the payments following conditions shall be applicable: (i) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a limit on the amount that may be reimbursed or paid), (ii) any reimbursement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (iii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. 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 after termination of employment”), the actual date of payment within the specified period shall be within the sole discretion of the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intent.409A.

409A. Notwithstanding anything This Agreement is intended to the contrary in this Agreement, the parties intend provide payments that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes and/or that comply with the provisions of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "“Code"”) and related regulations and Treasury pronouncements (“Section 409A”), then and this Agreement shall be interpreted accordingly (i) no such it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A and the applicable policies and guidelines of the Company). If any provision of this Agreement would cause Employee to Executive unless Executive's termination incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the extent possible, the original intent of employment constitutes a "the applicable provision without violating the provisions of Section 409A. Notwithstanding anything herein to the contrary, if on the date of Employee’s separation from service" with the Company (service Employee is a “specified employee,” as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto)409A, and (ii) if Executive is determined by the Company to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion additional tax provided by Section 409A(a)(1)(B) of the Severance Pay benefits will Code if not delayed as required by Section 409A(a)(2)(B)(i) of the Code shall be delayed for six until the first (61st) months business day of the seventh (7th) month following Executive's "Employee’s separation from service" pursuant to Code § 409A, service date (or, if soonerearlier, until Executive's Employee’s date of death. Delayed Severance Pay benefits (if any) and shall be payable in paid as a lump sum on such date. Employee acknowledges and agrees that Employee has obtained no advice from the first business day following the expiration Company or any of its affiliates, or any of their respective officers, directors, employees, subsidiaries, affiliates, agents, attorneys or other representatives, and that none of such six (6) month periodpersons or entities have made any representation regarding the tax consequences, if any, of Employee’s receipt of the payments, benefits and any remaining Severance Pay benefits due shall be paid as otherwise other consideration provided for in Section 3(b)(i)this Agreement. Notwithstanding Employee further acknowledges and agrees that Employee is personally responsible for the foregoing, to the maximum extent permitted by applicable law, payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Employee under this Agreement. Employee agrees to hold the Severance Pay benefits shall be Company harmless for any and all taxes, penalties or other assessments that Employee is, or may become, obligated to pay on account of any payments made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect and other consideration provided to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a right to a series of separate payments. The provisions of Employee under this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intentAgreement.

409A. Notwithstanding anything to It is intended that the contrary in payments and benefits under this Agreement, the parties intend that any amounts payable hereunder Agreement comply with Section 409A of the Code (together with the Treasury Regulations relating thereto, “Section 409A”), or are exempt from Section 409A. For purposes of satisfy the requirements for an exemption to Section 409A, in each of case, to the payments that may be made under extent applicable to this Agreement and, accordingly, to the maximum extent permitted, this Agreement shall be deemed interpreted and be administered to be a separate payment for purposes in compliance therewith (or to be in satisfaction of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments an exemption therefrom). Notwithstanding anything contained herein to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else hereincontrary, to the extent any required in order to avoid accelerated taxation and/or tax penalties under Section 409A, the Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement, no Termination Date shall be deemed to have occurred, and no payment otherwise payable upon a termination of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment Executive’s employment shall be made paid to the Executive under this Agreement unless and until the Executive's ’s termination of employment constitutes a "“separation from service" with ” from the Company within the meaning of Section 409A (a “Separation from Service”). Any payments described in this Agreement that qualify for the “short-term deferral” exception from Section 409A as such term is defined described in Treasury Regulation Section 1.409A-l(h1.409A-1(b)(4) and any successor provision thereto)will be paid under such exception. For purposes of Section 409A of the Code (including, and (ii) if Executive is determined by the Company to be a "specified employee" without limitation, for purposes of Code § 409A(a)(2)(B)(iTreasury Regulation Section 1.409A-2(b)(2)(iii) and the Company determines that delayed commencement of any portion application of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(ishort-term deferral exception), commencement of such portion of the Severance Pay benefits each payment under this Agreement will be delayed for six (6) months following Executive's "separation from service" treated as a separate payment and any right to a series of installment payments pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall this Agreement will be treated as a right to a series of separate payments. The provisions of Notwithstanding anything to the contrary in this Agreement are intended (whether under this Agreement or otherwise), to comply with the applicable requirements extent delayed commencement of Code § 409A and any portion of the payments to be made to the Executive upon his Separation from Service is required to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of the payments shall be limiteddelayed and paid on the first business day after the earlier of (i) the date that is six (6) months following such Separation from Service and (ii) the Executive’s death. Notwithstanding anything contained herein to the contrary, construedto the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, any payments or amounts reimbursable to the Executive under this Agreement shall be paid or reimbursed to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred and interpreted the amount of expenses eligible for reimbursement (and in-kind benefits provided to the Executive) during any one calendar year may not affect amounts reimbursable or provided in accordance with any subsequent calendar year and the Executive’s right to such intentreimbursements (or in-kind benefits) may not be liquidated or exchanged for any other benefit. With respect to any payments hereunder that may be made during any particular payment window (e.g., within sixty days) rather than on a specified payment date, the Company shall have the right to determine the exact payment date within such payment window.

409A. Notwithstanding anything This Agreement is intended to the contrary in this Agreement, the parties intend provide payments that any amounts payable hereunder comply with or are exempt from Section 409A. For purposes and/or that comply with the provisions of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and related regulations and Treasury pronouncements ("Section 409A"), then and this Agreement shall be interpreted accordingly (i) no such it being understood that the payment of any reimbursement hereunder shall be made in a manner exempt from, or in compliance with, Section 409A). If any provision of this Agreement would cause Executive to Executive unless incur any additional tax under Section 409A, this Agreement shall be deemed amended to reform, and/or the parties hereto will in good faith attempt to reform, the provision in a manner that maintains, to the extent possible, the original intent of the applicable provision without violating the provisions of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be designated as a "separate payment" within the meaning of the Section 409A. All references herein to Executive's "termination of employment constitutes a "separation from serviceemployment" with the Company (as such or other similar term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company shall refer to be a "specified employee" for purposes of Code § 409A(a)(2)(B)(i) and the Company determines that delayed commencement of any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant within the meaning of Section 409A and Treas. Reg. Section l.409A-l(h). Notwithstanding anything herein to Code § the contrary, if on the date of Executive's separation from service Executive is a "specified employee," as defined in Section 409A, then any portion of any payments, benefits or other consideration under this Agreement that are determined to be subject to the additional tax provided by Section 409A(a)(l)(B) of the Code if not delayed as required by Section 409A(a)(2)(B)(i) of the Code shall be delayed until the first (1st) business day of the seventh (7th) month following Executive's separation from service date (or, if soonerearlier, until Executive's date of death. Delayed Severance Pay benefits (if any) ), and the total of such delayed amounts shall be payable in paid as a lump sum on such date. For purposes of clarification, any portion of any separation allowance or other payment due to Executive under this Agreement that is not considered deferred compensation under Section 409A through either the first business day following "short­ term deferral" exception pursuant to Treasury Reg. l.409A-l(b)(4) or the expiration of such six (6"separation pay" exception pursuant to Treasury Reg. l.409A-l(b)(9) month period, and any remaining Severance Pay benefits due shall will not be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, subject to the maximum extent permitted by 6 month delay described in this paragraph as provided under Section 409A. With respect to any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that constitutes a "deferral of compensation" within the meaning of Section 409A, (i) the expenses eligible for reimbursement or in-kind benefits provided to Executive must be incurred during the Employment Period (or applicable lawsurvival period), payment (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the Severance Pay amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in reliance upon Treasury Regulation § 1.409A-l(b)(9which the applicable expense is incurred, and (iv) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits shall be treated as a the right to a series payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. Executive acknowledges and agrees that Executive has obtained no advice from the Company or any of separate payments. The provisions its affiliates, or any of this Agreement are intended to comply with the applicable requirements of Code § 409A and shall be limitedtheir respective officers, construeddirectors, employees, subsidiaries, affiliates, agents, attorneys or other representatives, and interpreted that none of such persons or entities have made any representation regarding the tax consequences, if any, of Executive's receipt of the payments, benefits and other consideration provided for in accordance with such intentthis Agreement. Executive further acknowledges and agrees that Executive is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to hold the Company harmless for any and all taxes, penalties or other assessments that Executive is, or may become, obligated to pay on account of any payments made and other consideration provided to Executive under this Agreement.

409A. Notwithstanding anything The intent of the parties is that the payment of any Amounts or benefits under this Agreement which are subject to the contrary in provisions of Code Section 409A shall comply with Code Section 409A and, accordingly, to the maximum extent permitted, this AgreementAgreement shall be interpreted to comply therewith. To the extent required by Code Section 409A, a cessation or termination of the Employee’s employment shall not be deemed to have occurred for purposes of Section 7 or Section 9 or any other provision of this Agreement providing for the payment of any Amounts or benefits subject to Code Section 409A upon or following a cessation or termination of employment unless such termination is also a Separation from Service. If the Employee is deemed at the time of his termination of employment to be a “specified employee” within the meaning of that term under Code Section 409(a)(2)(B)(i), then with regard to any payment or the provision of any benefit to the Employee that is considered deferred compensation under Code Section 409A payable on account of a Separation from Service, no such payment or benefit shall be made or provided prior to the earlier of (A) the expiration of the six (6) month period measured from the time of such Separation from Service of the Employee, and (B) the time of the Employee’s death, to the extent required under Code Section 409A. For the avoidance of doubt, the parties intend that any amounts payable hereunder comply with or are exempt from Section 409A. For the Manager Payment Time is a “specified time” for purposes of Code Section 409A, each 409A(a)(2)(A)(iv). Upon the expiration of the foregoing delay period, all payments that may and benefits delayed pursuant to this Section 14(k) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be made paid or reimbursed to Isthmus or the Employee in a lump sum, and any remaining payments and benefits due under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed paid or provided in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then (i) no such payment shall be made to Executive unless Executive's termination of employment constitutes a "separation from service" accordance with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and (ii) if Executive is determined by the Company to be a "normal payment times specified employee" for them herein. For purposes of Code § 409A(a)(2)(B)(i) and Section 409A, the Company determines that delayed commencement right of Isthmus or the Employee to receive any portion of the Severance Benefits is required in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" installment payments pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if any) shall be payable in a lump sum on the first business day following the expiration of such six (6) month period, and any remaining Severance Pay benefits due shall be paid as otherwise provided in Section 3(b)(i). Notwithstanding the foregoing, to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (with respect to separation pay plans) or Treasury Regulation § 1.409A-l(b)(4). The Severance Pay benefits this Agreement shall be treated as a right to receive a series of separate and distinct payments. The provisions Whenever a payment under this Agreement specifies a payment period, the actual time of payment within that specified period shall be within the sole discretion of the Employer. Notwithstanding any other provision of this Agreement are intended to comply with the applicable requirements contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code § Section 409A be subject to offset by any other Amount unless otherwise permitted by Code Section 409A. If the amount of the Profit-Sharing Payment depends in part on the determination of an Approved Appraiser set forth in a Valuation Report, and the Employer or the Employee petitions a court of competent jurisdiction to correct or vacate such determination, then, to the extent permitted by Code Section 409A, the portion of the Profit-Sharing Payment that is not dependent upon the Fair Market Value of the asset subject to the Valuation Report shall be limited, construedpayable to the Employee at the Manager Payment Time, and interpreted the remaining portion of the Profit-Sharing Payment (the “Disputed Portion”) shall be payable in accordance with such intentTreas. Reg. Section 1.409A-3(g) (Disputed Payments and Refusals to Pay).

409A. Notwithstanding anything to the contrary in It is intended that this Agreement, the parties intend that any amounts payable hereunder Agreement will comply with or are exempt from Section 409A. For purposes of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A. Notwithstanding anything else herein, to the extent any of the Severance Pay benefits are treated as nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "“Code"”) (and any regulations and guidelines issued thereunder), to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure to act, pursuant to this Section 12.09 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes, interest or penalties pursuant to Section 409A of the Code. Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed on the date of his “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after taking into account the applicable provisions of Treasury Regulation Section 1.409A-1(b)(9)(iii)), the portion, if any, of such payment so required to be delayed shall not be made prior to the earlier of (i) no such payment shall be made to Executive unless Executive's termination the expiration of employment constitutes a "the six (6)-month period measured from the date of his “separation from service" with the Company (as such term is defined in Treasury Regulation Section 1.409A-l(h) and any successor provision thereto), and ” or (ii) if Executive is determined by the Company to be a "specified employee" for purposes date of Code § 409A(a)(2)(B)(i) and his death (the Company determines that delayed commencement of any portion “Delay Period”). Upon the expiration of the Severance Benefits is required Delay Period, all payments and benefits delayed pursuant to this Section (whether they would have otherwise been payable in order to avoid a prohibited distribution under Code § 409A(a)(2)(B)(i), commencement single sum or in installments in the absence of such portion of the Severance Pay benefits will be delayed for six (6) months following Executive's "separation from service" pursuant to Code § 409A, or, if sooner, until Executive's death. Delayed Severance Pay benefits (if anydelay) shall be payable paid or reimbursed to the Executive in a lump sum on the first business day following the expiration of such six (6) month periodsum, and any remaining Severance Pay benefits payments due under this Agreement shall be paid as otherwise provided in Section 3(b)(i)accordance with the normal payment dates specified for them herein. Notwithstanding the foregoing, Whenever payments under this Agreement are to the maximum extent permitted by applicable law, payment of the Severance Pay benefits shall be made in reliance upon Treasury Regulation § 1.409A-l(b)(9) (installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A of the Code. In no case will compliance with this Section by the Company constitute a breach of the Company’s obligations under this Agreement. With respect to separation pay plans) any reimbursement or Treasury Regulation § 1.409Ain-l(b)(4). The Severance Pay benefits kind benefit arrangements of the Company and its subsidiaries provided for herein that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the following conditions shall be treated as applicable: (i) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a limit on the amount that may be reimbursed or paid), (ii) any reimbursement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (iii) the right to a series of separate payments. The provisions of this Agreement are intended reimbursement or in-kind benefits is not subject to comply with the applicable requirements of Code § 409A and shall be limited, construed, and interpreted in accordance with such intentliquidation or exchange for another benefit.