Common use of 409A CONSIDERATIONS Clause in Contracts

409A CONSIDERATIONS. (a) Subject to this Section 11, any severance payments or benefits that may be due under this Agreement shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of Executive’s employment. The following rules shall apply with respect to distribution of the severance payments or benefits, if any, to be provided to the Executive under this Agreement, as applicable: (i) It is intended that each installment of the severance payments or benefits under this Agreement provided under shall be treated as a separate “payment” for purposes of Section 409A of the Internal Revenue Code and the guidance issued thereunder (“Section 409A”). Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A. (ii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A), then each installment of the severance payments or benefits shall be made on the dates and terms set forth in this Agreement. (iii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then: (A) Each installment of the severance payments or benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the Executive’s separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms set forth in this Agreement; and (B) Each installment of the severance payments or benefits due under this Agreement that is not described in this Section 11(a)(iii) and that would, absent this subsection, be paid within the six-month period following the Executive’s “separation from service” from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs. (b) The determination of whether and when the Executive’s separation from service from the Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 11(b), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Internal Revenue Code. (c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. (d) The Company makes no representation or warranty and shall have no liability to the Executive or to any other person if any of the provisions of this Agreement (including this Section 11) are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.

409A CONSIDERATIONS. (a) Subject to this Section 11, any severance payments or benefits that may be due under this Agreement shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of Executive’s employment. The following rules shall apply with respect to distribution of the severance payments or benefits, if any, to be provided to the Executive under this Agreement, as applicable: (i) It is intended that each installment of the severance payments or benefits under this Agreement provided under shall be treated as a separate “payment” for purposes of administered in compliance with Section 409A of the Code, including, but not limited to, any future amendments to Code Section 409A, and any other Internal Revenue Code and the guidance Service (“IRS”) or other governmental rulings or interpretations issued thereunder pursuant to Section 409A (together, “Section 409A”)) so as not to subject Retiree to payment of interest or any additional tax under Section 409A. The parties intend for any payments under this Agreement either to satisfy the requirements of Section 409A or to be exempt from the application of Section 409A, and this Agreement shall be construed and interpreted accordingly. Neither In furtherance thereof, if payment or provision of any amount or benefit hereunder that is subject to Section 409A at the Company nor time specified herein would subject such amount or benefit to any additional tax under Section 409A, the Executive payment or provision of such amount or benefit shall have be postponed to the right earliest commencement date on which the payment or provision of such amount or benefit can be made without incurring such additional tax. In addition, to accelerate the extent that Section 409A or defer any IRS guidance issued under Section 409A would result in Retiree being subject to the delivery payment of interest or any additional tax under Section 409A, the parties agree, to the extent reasonably possible, to amend this Agreement to avoid the imposition of any such payments except to interest or additional tax under Section 409A, which amendment shall minimize any negative economic effect on Retiree and be reasonably determined in good faith by the extent specifically permitted or required by Section 409A. (ii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is not Company and Retiree. As a “specified employee” (within the meaning of as defined in Section 409A), then each installment any amounts payable under this Agreement that would be subject to the special rule regarding payments to “specified employees” under Section 409A(a)(2)(B) of the severance payments or benefits Code shall not be made on paid before the dates and terms set forth in this Agreement. expiration of a period of six (iii6) If, as of months following the date of the Executivetermination of Retiree’s employment. In such case, Retiree shall receive all such deferred amounts retroactively in a single sum and the balance thereof as otherwise provided. In no event whatsoever shall the Company be liable for any additional tax, interest or penalties that may be imposed on Retiree by Code Section 409A or any damages for failing to comply with Section 409A; provided that, in the event that any excise tax or interest amount (“separation from service” from 409A Amount”) is imposed on Retiree as a result of any negligent act or omission by the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then: (A) Each installment of the severance payments or benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the Executive’s separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms set forth in this Agreement; and (B) Each installment of the severance payments or benefits due under this Agreement that is not described in this Section 11(a)(iii) and that would, absent this subsection, be paid within the six-month period following the Executive’s “separation from service” from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with reimburse Retiree for any such installments that are required to be delayed being accumulated during the six409A Amount, grossed-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions up for taxes at an assumed total tax rate of this sentence shall not apply to any installment of payments if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) forty percent (relating to separation pay upon an involuntary separation from service40%). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs. (b) The determination of whether and when the Executive’s separation from service from the Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 11(b), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Internal Revenue Code. (c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. (d) The Company makes no representation or warranty and shall have no liability to the Executive or to any other person if any of the provisions of this Agreement (including this Section 11) are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.

409A CONSIDERATIONS. (a) Subject to this Section 11, any severance payments or benefits The Executive acknowledges that may be due under this Agreement shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of Executive’s employment. The following rules shall apply with respect is intended to distribution of the severance payments or benefits, if anycomply, to be provided to the Executive under this Agreementextent applicable, as applicable: (i) It is intended that each installment of with the severance payments or benefits under this Agreement provided under shall be treated as a separate “payment” for purposes provisions of Section 409A of the Internal Revenue Code and the guidance issued thereunder of 1986, as amended (“Section 409A”) and shall, to the extent practicable, be construed in accordance therewith. Terms defined in this Agreement shall have the meanings given such terms under Section 409A if and to the extent required in order to comply with Section 409A. If and to the extent any portion of any payment, compensation or other benefit provided to the Executive in connection with his separation from service (as defined in Section 409A) is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A and the Executive is a “specified employee” as defined in Section 409A(a)(2)(B)(i), as determined by the Company in accordance with its procedures and Treasury Regulation 1.409A-1 (i)(6)(i). by which determination the Executive hereby agrees that he is bound, such portion of the payment, compensation or other benefit shall not be paid before the day that is six months plus one day after the date of separation from service (as determined under Section 409A (the “New Payment Date”)), except as Section 409A may then permit, The aggregate of any payments that otherwise would have been paid to the Executive during the period between the date of separation from service and the New Payment Date shall be paid to the Executive in a lump sum on such New Payment Date, and any remaining payments will be paid on their original schedule. For purposes of this Agreement, each amount to be paid or benefit to be provided shall be construed as a separate identified payment for purposes of Section 409A, and any payments that are due within the “short term deferral period” as defined in Section 409A shall not be treated as deferred compensation unless applicable law requires otherwise. Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. (ii) If409A. Notwithstanding the foregoing, as of the date of the Executive’s “separation from service” from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A), then each installment of the severance payments or benefits shall be made on the dates and terms set forth in this Agreement. (iii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then: (A) Each installment of the severance payments or benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the Executive’s separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms set forth in this Agreement; and (B) Each installment of the severance payments or benefits due under this Agreement that is not described in this Section 11(a)(iii) and that would, absent this subsection, be paid within the six-month period following the Executive’s “separation from service” from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs. (b) The determination of whether and when the Executive’s separation from service from the Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 11(b), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Internal Revenue Code. (c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements this Agreement or in-kind benefits are subject any payment or benefit hereunder shall be deemed not to comply with Section 409A, includingthen neither the Company, where applicableits Board, the requirements that (i) nor any reimbursement is for expenses incurred during the Executive’s lifetime (of its designees, agents, or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will employees shall be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. (d) The Company makes no representation or warranty and shall have no liability liable to the Executive or to any other person if for any of the provisions of actions, decisions or determinations made in good faith under this Agreement (including this Section 11) are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption fromafter prior consultation with the Executive, or the conditions of, that sectionfor any resulting adverse tax consequences.

409A CONSIDERATIONS. (a) Subject to this Section 11, any severance payments or benefits that may be due under this Agreement shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of Executive’s employment. The following rules shall apply with respect to distribution of the severance payments or benefits, if any, to be provided to the Executive under this Agreement, as applicable: (i) It is intended that each installment of the severance payments or benefits under this Agreement provided under shall be treated as a separate “payment” for purposes of administered in compliance with Section 409A of the Code, including, but not limited to, any future amendments to Code Section 409A, and any other Internal Revenue Code and the guidance Service (“IRS”) or other governmental rulings or interpretations issued thereunder pursuant to Section 409A (together, “Section 409A”)) so as not to subject Retiree to payment of interest or any additional tax under Section 409A. The parties intend for any payments under this Agreement either to satisfy the requirements of Section 409A or to be exempt from the application of Section 409A, and this Agreement shall be construed and interpreted accordingly. Neither In furtherance thereof, if payment or provision of any amount or benefit hereunder that is subject to Section 409A at the Company nor time specified herein would subject such amount or benefit to any additional tax under Section 409A, the Executive payment Page 6 of 8 or provision of such amount or benefit shall have be postponed to the right earliest commencement date on which the payment or provision of such amount or benefit can be made without incurring such additional tax. In addition, to accelerate the extent that Section 409A or defer any IRS guidance issued under Section 409A would result in Retiree being subject to the delivery payment of interest or any additional tax under Section 409A, the parties agree, to the extent reasonably possible, to amend this Agreement to avoid the imposition of any such payments except to interest or additional tax under Section 409A, which amendment shall minimize any negative economic effect on Retiree and be reasonably determined in good faith by the extent specifically permitted or required by Section 409A. (ii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is not Company and Retiree. As a “specified employee” (within the meaning of as defined in Section 409A), then each installment any amounts payable under this Agreement that would be subject to the special rule regarding payments to “specified employees” under Section 409A(a)(2)(B) of the severance payments or benefits Code shall not be made on paid before the dates and terms set forth in this Agreement. expiration of a period of six (iii6) If, as of months following the date of the Executivetermination of Retiree’s employment. In such case, Retiree shall receive all such deferred amounts retroactively in a single sum and the balance thereof as otherwise provided. In no event whatsoever shall the Company be liable for any additional tax, interest or penalties that may be imposed on Retiree by Code Section 409A or any damages for failing to comply with Section 409A; provided that, in the event that any excise tax or interest amount (“separation from service” from 409A Amount”) is imposed on Retiree as a result of any negligent act or omission by the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then: (A) Each installment of the severance payments or benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the Executive’s separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms set forth in this Agreement; and (B) Each installment of the severance payments or benefits due under this Agreement that is not described in this Section 11(a)(iii) and that would, absent this subsection, be paid within the six-month period following the Executive’s “separation from service” from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with reimburse Retiree for any such installments that are required to be delayed being accumulated during the six409A Amount, grossed-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions up for taxes at an assumed total tax rate of this sentence shall not apply to any installment of payments if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) forty percent (relating to separation pay upon an involuntary separation from service40%). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs. (b) The determination of whether and when the Executive’s separation from service from the Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 11(b), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Internal Revenue Code. (c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. (d) The Company makes no representation or warranty and shall have no liability to the Executive or to any other person if any of the provisions of this Agreement (including this Section 11) are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.

409A CONSIDERATIONS. (a) Subject to this Section 11, any severance payments or benefits that may be due under this Agreement shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of Executive’s employment. The following rules shall apply with respect to distribution of the severance payments or benefits, if any, to be provided to the Executive under this Agreement, as applicable: (i) It is intended that each installment of the severance payments or benefits under this Agreement provided under shall be treated as a separate “payment” for purposes of administered in compliance with Section 409A of the Code, including, but not limited to, any future amendments to Code Section 409A, and any other Internal Revenue Code and the guidance Service (“IRS”) or other governmental rulings or interpretations issued thereunder pursuant to Section 409A (together, “Section 409A”)) so as not to subject you to payment of interest or any additional tax under Section 409A. The parties intend for any payments under this Agreement either to satisfy the requirements of Section 409A or to be exempt from the application of Section 409A, and this Agreement shall be construed and interpreted accordingly. Neither In furtherance thereof, if payment or provision of any amount or benefit hereunder that is subject to Section 409A at the Company nor time specified herein would subject such amount or benefit to any additional tax under Section 409A, the Executive payment or provision of such amount or benefit shall have be postponed to the right earliest commencement date on which the payment or provision of such amount or benefit can be made without incurring such additional tax. In addition, to accelerate the extent that Section 409A or defer any IRS guidance issued under Section 409A would result in you being subject to the delivery payment of interest or any additional tax under Section 409A, the parties agree, to the extent reasonably possible, to amend this Agreement to avoid the imposition of any such payments except to interest or additional tax under Section 409A, which amendment shall minimize any negative economic effect on you and be reasonably determined in good faith by the extent specifically permitted or required by Section 409A. (ii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is not Company and you. As a “specified employee” (within the meaning of as defined in Section 409A), then each installment any amounts payable under this Agreement that would be subject to the special rule regarding payments to “specified employees” under Section 409A(a)(2)(B) of the severance payments or benefits Code shall not be made on paid before the dates and terms set forth in this Agreement. expiration of a period of six (iii6) If, as of months following the date of the Executive’s termination of your employment. In such case, you shall receive all such deferred amounts retroactively in a single sum and the balance thereof as otherwise provided. In no event whatsoever shall the Company be liable for any additional tax, interest or penalties that may be imposed on you by Code Section 409A or any damages for failing to comply with Section 409A; provided that, in the event that any excise tax or interest amount (“separation from service” from 409A Amount”) is imposed on you as a result of any negligent act or omission by the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then: (A) Each installment of the severance payments or benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the Executive’s separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms set forth in this Agreement; and (B) Each installment of the severance payments or benefits due under this Agreement that is not described in this Section 11(a)(iii) and that would, absent this subsection, be paid within the six-month period following the Executive’s “separation from service” from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with reimburse you for any such installments that are required to be delayed being accumulated during the six409A Amount, grossed-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions up for taxes at an assumed total tax rate of this sentence shall not apply to any installment of payments if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) forty percent (relating to separation pay upon an involuntary separation from service40%). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs. (b) The determination of whether and when the Executive’s separation from service from the Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 11(b), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Internal Revenue Code. (c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. (d) The Company makes no representation or warranty and shall have no liability to the Executive or to any other person if any of the provisions of this Agreement (including this Section 11) are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.

409A CONSIDERATIONS. (a) Subject to this Section 11, any severance The payments or benefits that may be due under this Agreement shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of Executive’s employment. The following rules shall apply with respect to distribution of the severance payments or benefits, if any, to be provided to the Executive under this Agreement, as applicable: (i) It is intended that each installment of the severance payments or and benefits under this Agreement provided under shall are not intended to be treated as a separate “payment” for purposes of subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and guidance issued promulgated thereunder (“Section 409A”). Neither the Company nor the Executive shall have the right to accelerate , by virtue of one or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A. (ii) If, as more of the date of the Executive’s “separation from service” from the Companycoverage exceptions to Section 409A, including, without limitation, the Executive is not a “specified employee” (within exception for short-term deferrals under Treas. Reg. Sec. 1.409A-1(b)(4) and the meaning exceptions for separation pay plans under Treas. Reg. Sec. 1.409A-1(b)(9). For purposes of Section 409A), then each installment of the severance payments or benefits shall be payment made on the dates and terms set forth in this Agreement. (iii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then: (A) Each installment of the severance payments or benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the Executive’s separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) separate payment. Notwithstanding anything herein to the maximum extent permissible under Section 409A and shall be paid on contrary, the dates and terms set forth in this Agreement; and (B) Each installment commencement of the severance any payments or benefits due under this Agreement hereunder that is not described in this constitute a “deferral of compensation” subject to Section 11(a)(iii) and that would, absent this subsection, 409A shall be paid within the six-month period following the Executive’s “separation from service” from the Company shall not be paid deferred until the date that is six months and one the first business day after such separation from service of the seventh month following the Employment Termination Date (or, if earlier, a date which is within 30 days of the date of Executive’s death). In no event may Executive, with directly or indirectly, designate the calendar year of any such installments payment hereunder, and in no event whatsoever shall the Company be liable for any additional tax, interest or penalties that are required may be imposed under Section 409A on Executive as a result of any payment made hereunder, or for any damages for failing to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service)comply therewith. Any installments that qualify reimbursement payment for the exception under Treasury Regulation costs or expenses or otherwise, except as permitted by Section 1.409A-1(b)(9)(iii409A, shall (i) must be paid made no later than the last day end of the Executive’s second taxable calendar year following the taxable calendar year in which the separation from service occurs. (b) The determination of whether and when the Executive’s separation from service from the Company has occurred shall be made and in a manner consistent withsuch costs, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 11(b), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Internal Revenue Code. (c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements expenses or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses were incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), provided; (ii) the amount of expenses eligible for reimbursement reimbursement, or in-kind benefits provided, during a calendar any taxable year may shall not affect the amounts of expenses eligible for reimbursement reimbursement, or in-kind benefits to be provided, in any other calendar yeartaxable year (other than with regard to a limit related to the period in which an arrangement is in effect (other than with regard to a limit related to the period in which the arrangement is in effect with regard to an arrangement subject to Section 105(b) of the Code), and (iii) the reimbursement of an eligible expense will or in-kind benefit cannot be made on liquidated or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange exchanged for any other benefit. . If Executive notifies the Company (d) The Company makes no representation or warranty and shall have no liability with specificity as to the reason therefore) that Executive believes that as a result of subsequently published guidance issued by the Internal Revenue Service upon which taxpayers generally rely, any provision of this Agreement would cause Executive to incur any additional tax or interest under Section 409A and the Company concurs with such belief or the Company independently makes such determination, the Company shall, after consulting with Executive, reform such provision to attempt to comply with Section 409A through good faith modifications to the minimum extent necessary to conform with Section 409A and, to the extent applicable, IRS Notice 2010-6. To the extent that any other person if any of provision hereof is modified in order to comply with Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible without violating the provisions of this Agreement (including this Section 11) are determined 409A, maintain the original intent and economic benefit to constitute deferred compensation subject Executive and the Company and be tax neutral to Section 409A but that do not satisfy an exemption from, or the conditions of, that sectionCompany.