Common use of 409A Clause in Contracts

409A. 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 Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with 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 payment made pursuant to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Section 409A, the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business day of the 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 without interest.

409A. (a) If an amount or the value of a benefit under this Agreement is required to be included in an Employee’s income prior to the date such amount is actually distributed or benefit provided as a result of the failure of this Agreement (or any other arrangement required to be aggregated with this Agreement under Code Section 409A) to comply with Code Section 409A, then the Employee shall receive a distribution, in a lump sum, within ninety (90) days after the date it is finally determined that the Agreement fails to meet the requirements of Code Section 409A; such distribution shall equal the amount required to be included in the Employee’s income as a result of such failure and shall reduce the amount of payments or benefits otherwise due hereunder. (b) The Company and the Employee intend the terms of this Agreement to be in compliance with Code Section 409A. The Company does not guarantee the tax treatment or tax consequences associated with any payment or benefit, including but not limited to consequences related to Code Section 409A. To the maximum extent permittedpermissible, 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 Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with 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 payment made pursuant to any provision ambiguous terms of this Agreement shall be considered interpreted in a separate payment manner which avoids a violation of Code Section 409A. (c) The Employee acknowledges that to avoid an additional tax on payments that may be payable or benefits that may be provided under this Agreement and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified that constitute deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation that is not exempt from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Code Section 409A, the Company shall defer Employee must make a reasonable, good faith effort to collect any payment of “nonqualified deferred compensation” subject or benefit to Section 409A payable as a result of and within six which the Employee believes the Employee is entitled hereunder no later than ninety (6) months following such “separation from service” until the earlier of (i) the first business day of the seventh month following Employee’s “separation from service,” or (ii) ten (1090) days after the latest date upon which the payment could have been made or benefit provided under this Agreement, and if not paid or provided, must take further enforcement measures within one hundred eighty (180) days after such latest date. (d) The Employee acknowledges that in the discretion of the Company receives written confirmation a portion of Employee’s death. Any the benefits hereunder may be accelerated up to the amount of the withholding requirement for taxes under Code Section 3121(v) (i.e., FICA taxes) related to the benefits hereunder; any such delayed acceleration shall reduce the amount of payments shall be made without interestotherwise due hereunder.

409A. To the maximum extent permitted, this Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code If Section 409A (“Section 409A”) but in any event will be interpreted to comply with Section 409A. In of the event this Agreement or any benefit paid under this Agreement to Employee Code is deemed to be subject to Section 409A, Employee consents applicable to the Company’s adoption payment of such conforming amendments as any benefits payable to the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreement, a Executive upon termination of employment means employment, such event triggering the payment of benefits must constitute a “separation from service” as defined in under Section 409A. Each payment made pursuant to any provision 409A(a)(2)(A)(i) of this Agreement shall be considered a separate payment the Code and not one Treas. Reg. §1.409A-1(h) before distribution of a series of payments for purposes of Section 409A. such benefits can commence. To the extent that Section 409A is applicable and the termination of the Executive’s employment does not constitute a separation of service under Section 409A(a)(2)(A)(i) of the United States Tax Code (the “Code”) and Treas. Reg. §1.409A-1(h) (as the result of further services that are reasonably anticipated to be provided by the Executive at the time the Executive’s employment terminates), any nonqualified benefits payable under Article 5 that constitute deferred compensation payment to Employee could under Section 409A of the Code shall be paid in one or more delayed until after the date of Employeea subsequent event constituting a separation of service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h). For purposes of clarification, this Section 6 shall not cause any forfeiture of benefits on the Executive’s taxable years depending upon Employee completing certain employment-related actionspart, then any but shall only act as a delay until such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s time as a “separation from service” within occurs. Further, if the meaning of Section 409A, Employee Executive is then a “specified employee” (as defined that term is used in Section 409A)409A of the Code and regulations and other guidance issued thereunder) on the date his separation from service becomes effective and the payment of the amounts described in Article 5 constitute non-qualified deferred compensation, the payment of which would result in penalties under Section 409A of the Code, then solely such payments shall be delayed until the business day following the six-month anniversary of the date his separation from service becomes effective, but only to the extent necessary to comply with avoid such penalties under Section 409A and avoid of the imposition Code. On the business day following the six-month anniversary of taxes under Section 409Athe date his separation from service becomes effective, the Company Executive shall defer payment be paid in a lump sum the aggregate value of the non-qualified deferred compensation that otherwise would have been paid to the Executive prior to that date under Article 5 of this Agreement. It is intended that each installment of the payments and benefits provided under Article 5 of this Agreement or elsewhere in this Agreement shall be treated as a separate “nonqualified deferred compensationpayment” subject to for purposes of Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business day of the seventh month following Employee’s “separation from service,” Code. Neither the Corporation nor the Executive shall have the right to accelerate or (ii) ten (10) days after defer the Company receives written confirmation delivery of Employee’s death. Any any such delayed payments shall be made without interestor benefits except to the extent specifically permitted or required by Section 409A of the Code.

409A. To the maximum extent permitted, this This Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code comply with or be exempt from Section 409A (“Section 409A”) but or an exception thereunder and shall be interpreted, construed and administered in any event will be interpreted to comply with Section 409A. In the event this Agreement or any benefit paid under accordance therewith. Notwithstanding anything in this Agreement to Employee is the contrary, in the event that you are deemed to be subject to Section 409A, Employee consents to the Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with 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 payment made pursuant to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from servicespecified employee” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in Section 409A409A(a)(2)(B)(i), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Section 409A, the Company shall defer payment of no payments hereunder that are “nonqualified deferred compensation” subject to Section 409A payable as a result of and within shall be made to you prior to the date that is six (6) months following such “separation from service” until the earlier after your Separation Date or, if earlier, your date of (i) the first business day of the seventh month following Employee’s “separation from service,” or (ii) ten (10) days after the Company receives written confirmation of Employee’s death. Any Following any applicable six (6) month delay, all such delayed payments will be paid in a single lump sum on the first payroll date following the date that is six (6) months after your Separation Date. To the extent that any reimbursements are taxable to you, any such reimbursement payment due to you shall be made without interest.paid to you in all events on or before the last day of your taxable year following the taxable year in which the related expense was incurred. The reimbursements are not subject to liquidation or exchange for another benefit and the amount of such benefits and reimbursements that you receive in one taxable year shall not affect the amount of such benefits or reimbursements that you receive in any other taxable year. For purposes of Section 409A, each installment payment, if applicable, provided under this Agreement shall be treated as a separate payment. Notwithstanding the foregoing, the Company makes no representations that the payments or benefits provided under this Agreement comply with Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the you as a result of this Agreement failing to comply with Section 409A.

409A. To the maximum extent permitted, this 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 Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with 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 payment made pursuant to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Section 409A, the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business day of the 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 without interest.

409A. 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 Company’s adoption of such conforming amendments as You and the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), agree that the terms and conditions hereof are intended by the parties to comply with Section 409A of the Code and avoid 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 imposition Code. You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the gross-up payment under Section 10(d) of the Employment Agreement. Such notification shall be 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 be paid. You shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which you give such notice to the Company (or such shorter period ending on the date that any payment of taxes under with respect to such claim is due). If the Company notifies you in writing prior to the expiration of such period that it desires to contest such claim, you shall: (i) give 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, including, without limitation, accepting legal representation with respect to 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 directly 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 409A. For purposes 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 and penalties with respect thereto) and other costs, expenses or liabilities imposed on you as a result of such contest, representation and payment of taxes, interest, penalties, costs and expenses. Without limiting the foregoing provisions of this Letter Agreement, the Company shall control all proceedings taken in connection with such contest, provided that such is pursued in a termination diligent and professional manner, and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of employment means such claim and may, at its sole option, either direct you to pay the tax claimed and s▇▇ for a “separation from service” as defined refund or contest the claim in Section 409A. Each payment made pursuant any permissible manner, and you agree to prosecute such contest to a determination before any provision administrative tribunal, in a court of this Agreement shall be considered a separate payment initial jurisdiction and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid 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 s▇▇ 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 Employee’s taxable years depending upon Employee completing certain employmentthe Employment Agreement, shall indemnify and hold you harmless, on an after-related actionstax basis, then from any excise tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payments will commence payment or occur in with respect to any imputed income with respect to such payment; and provided, further, that any extension of the later 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 extent required Company’s control of the contest shall be limited to issues with respect to which a gross-up payment would be payable hereunder and you shall be entitled, in 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 agreed that nothing in this paragraph 20 shall require you not to pay any tax (or interest and penalties thereon) imposed under Section 409A. If upon Employee409A when due or shall limit the Company’s “separation from service” within obligations under Section 10(d) of the meaning of Section 409AEmployment Agreement, Employee is then a “specified employee” including the Company’s obligation to pay you the 409A Gross-Up Payment (as defined in Section 409A), then solely 10(d) of the Employment Agreement) prior to the extent necessary to comply with date on which any excise tax or income tax (and interest and penalties thereon) imposed by Section 409A and avoid the imposition of taxes under Section 409A, the Company shall defer payment of “nonqualified deferred compensation” subject is due to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business day of the 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 without interestpaid.

409A. To Notwithstanding anything to the maximum contrary herein, the following provisions apply to the extent permitted, this Agreement is intended severance benefits provided herein are subject to not constitute a “nonqualified deferred compensation plan” within Section 409A of the meaning of Internal Revenue Code Section 409A of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) but in any event will be interpreted to comply with Section 409A. In ). Severance benefits shall not commence until 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 Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid the imposition of taxes under Section 409A. For purposes of this Agreement, a termination of employment means Executive has a “separation from service” as defined in Section 409A. Each payment made pursuant to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the extent any nonqualified deferred compensation payment severance benefits are intended to Employee could be paid in one or more satisfy the exemptions from application of Employee’s taxable years depending Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and the Executive is, upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in for purposes of Section 409A), then then, solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes adverse personal tax consequences under Section 409A, the Company timing of the severance benefits payments shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” be delayed until the earlier of (i) six (6) months and one day after the first business day of the seventh month following EmployeeExecutive’s “separation from service,” , or (ii) ten (10) days after the Company receives written confirmation of EmployeeExecutive’s death. Any The Executive shall receive severance benefits only if the Executive executes and returns to the Company, within the applicable time period set forth therein but in no event more than forty-five (45) days following the date of separation from service, a separation agreement containing the Company’s standard form of release of claims in favor of the Company [(attached to this Agreement as Exhibit A)], and permits such release to become effective in accordance with its terms (such latest permitted date, the “Separation Agreement Deadline”). If the severance benefits are not covered by one or more exemptions from the application of Section 409A and the separation agreement could become effective in the calendar year following the calendar year in which the Executive separates from service, the separation agreement will not be deemed effective any earlier than the Separation Agreement Deadline. None of the severance benefits will be paid or otherwise delivered prior to the effective date of the separation agreement. Except to the minimum extent that payments must be delayed payments shall because the Executive is a “specified employee” or until the effectiveness of the separation agreement, all amounts will be made without interestpaid as soon as practicable in accordance with the Company’s normal payroll practices.

409A. To It is intended that the maximum extent permitted, terms of this Agreement is intended to not constitute a “nonqualified deferred compensation plan” within the meaning of Internal Revenue Code comply with Section 409A of the Code and related Treasury regulations (“Section 409A”) but in any event 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. In Notwithstanding any provision to the event contrary in this Agreement or Agreement, with respect to any benefit paid amounts under this Agreement to Employee is deemed that are determined to be subject to Section 409A, Employee consents to the Company’s adoption deferred compensation for purposes of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid the imposition payable as a result of taxes under Section 409A. For purposes of this Agreement, a Executive’s termination of employment, Executive shall not be deemed to have terminated employment means unless and until Executive has experienced a “separation from service” (as defined that term is used in Section 409A. 409A). Each payment made pursuant amount to any provision of be paid or benefit to be provided under this Agreement shall be considered construed as a separate and distinct payment and not one of a series of payments for purposes of Section 409A. To Any reimbursements or in-kind benefits provided to or for the extent any nonqualified benefit of Executive that constitute deferred compensation payment for purposes of Section 409A shall be provided in a manner that complies with Treasury Regulation Section 1.409A-3(i)(1)(iv). Accordingly, (a) all such reimbursements will be made not later than the last day of the calendar year after the calendar year in which the expenses were incurred, (b) any right to Employee could such reimbursements or in-kind benefits will not be paid in one subject to liquidation or more exchange for another benefit, and (c) the amount of Employee’s taxable years depending upon Employee completing certain employmentthe expenses eligible for reimbursement, or the amount of any in-related actionskind benefit provided, then during any such payments will commence or occur in the later 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 notwithstanding anything contained herein to the contrary, on and after the date on which the Company’s stock becomes publicly traded on an established securities market or otherwise, to the extent required by Section 409A. If upon Employee’s “separation from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes 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 other arrangement between Executive and the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within during the six (6) months month period immediately following such “Executive’s separation from service” until the earlier of (i) service shall instead be paid on the first business day of after the seventh month date that is six months following EmployeeExecutive’s “separation from service,” or service (ii) ten (10) days after the Company receives written confirmation or, if earlier, Executive’s date of Employee’s death. Any such delayed payments shall be made without interest).

409A. (a) If an amount or the value of a benefit under this Agreement is required to be included in an Executive’s income prior to the date such amount is actually distributed or benefit provided as a result of the failure of this Agreement (or any other arrangement required to be aggregated with this Agreement under Code Section 409A) to comply with Code Section 409A, then the Executive shall receive a distribution, in a lump sum, within ninety (90) days after the date it is finally determined that the Agreement fails to meet the requirements of Code Section 409A; such distribution shall equal the amount required to be included in the Executive’s income as a result of such failure and shall reduce the amount of payments or benefits otherwise due hereunder. (b) ▇▇▇▇ and the Executive intend the terms of this Agreement to be in compliance with Code Section 409A. ▇▇▇▇ does not guarantee the tax treatment or tax consequences associated with any payment or benefit, including but not limited to consequences related to Code Section 409A. To the maximum extent permittedpermissible, 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 Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with 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 payment made pursuant to any provision ambiguous terms of this Agreement shall be considered interpreted in a separate payment manner which avoids a violation of Code Section 409A. (c) The Executive acknowledges that to avoid an additional tax on payments that may be payable or benefits that may be provided under this Agreement and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified that constitute deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation that is not exempt from service” within the meaning of Section 409A, Employee is then a “specified employee” (as defined in Section 409A), then solely to the extent necessary to comply with Section 409A and avoid the imposition of taxes under Code Section 409A, the Company shall defer Executive must make a reasonable, good faith effort to collect any payment of “nonqualified deferred compensation” subject or benefit to Section 409A payable as a result of and within six which the Executive believes the Executive is entitled hereunder no later than ninety (6) months following such “separation from service” until the earlier of (i) the first business day of the seventh month following Employee’s “separation from service,” or (ii) ten (1090) days after the Company receives written confirmation latest date upon which the payment could have been made or benefit provided under this Agreement, and if not paid or provided, must take further enforcement measures within one hundred eighty (180) days after such latest date. (d) The Executive acknowledges that in the discretion of Employee’s death. Any ▇▇▇▇ a portion of the benefits hereunder may be accelerated up to the amount of the withholding requirement for taxes under Code Section 3121(v) (i.e., FICA taxes) related to the benefits hereunder; any such delayed acceleration shall reduce the amount of payments shall be made without interestotherwise due hereunder.

409A. 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 (“Except as specifically permitted by Section 409A”, the benefits and reimbursements provided to the Executive during any calendar year shall not affect the benefits and reimbursements to be provided to the Executive in any other calendar year, and the right to such benefits and reimbursements may not be liquidated or exchanged for any other benefit, in accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv) or any successor thereto. Furthermore, reimbursement payments shall be made to the Executive as soon as practicable following the date that the applicable expense is incurred, but in any no event will be interpreted to comply later than the last day of the calendar year following the calendar year in which the underlying expense is incurred, in accordance with Treasury Regulation Section 409A. In the event this Agreement 1.409A-3(i)(1)(iv) or any benefit paid successor thereto. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement to Employee is deemed to be subject to Section 409A, Employee consents to the Company’s adoption of such conforming amendments as the Company deems advisable or necessary, in its sole discretion (but without an obligation to do so), to comply with Section 409A and avoid in no event shall the imposition Company be liable for all or any portion of taxes under any taxes, penalties, interest or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A. For purposes Notwithstanding any other provision of this Agreement, a if any payment or benefit provided to the Executive in connection with the Executive’s termination of employment means a is determined to constitute “separation from service” as defined in Section 409A. Each payment made pursuant to any provision of this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. To the extent any nonqualified deferred compensation payment to Employee could be paid in one or more of Employee’s taxable years depending upon Employee completing certain employment-related actions, then any such payments will commence or occur in the later taxable year to the extent required by Section 409A. If upon Employee’s “separation from servicecompensation” within the meaning of Section 409A, Employee 409A and the Executive is then determined to be a “specified employee” (as defined in Section 409A409A(a)(2)(b)(i), then solely such payment or benefit shall not be paid until the first payroll date to occur following the six-month anniversary of the Termination Date (the “Specified Employee Payment Date”). The aggregate of any payments that would otherwise have been paid before the Specified Employee Payment Date shall be paid to the extent necessary to comply with Section 409A Executive in a lump sum on the Specified Employee Payment Date and avoid the imposition of taxes under Section 409Athereafter, the Company shall defer payment of “nonqualified deferred compensation” subject to Section 409A payable as a result of and within six (6) months following such “separation from service” until the earlier of (i) the first business day of the 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 any remaining payments shall be made paid without interestdelay in accordance with their original schedule.