Executive Employment Agreement, dated October 27, 2017, by and between Bradley Ferguson and Cotiviti USA, LLC

1. Certain Definitions

(a) “Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person where “control” shall have the meaning given such term under Rule 405 of the Securities Act of 1933, as amended from time to time.

(b) “Agreement” shall have the meaning set forth in the preamble hereto.

(c) “Annual Base Salary” shall have the meaning set forth in Section 3(a).

(d) “Annual Bonus” shall have the meaning set forth in Section 3(b).

(e) “Benefit Continuation Period” shall have the meaning set forth in Section 5(b).

(f) “Board” shall mean the Board of Directors of the Company.

(g) “Business” shall mean the provision of payment integrity services, including payment policy management, recovery audit services, and prepay data mining services, 

for clients in the healthcare and retail sectors, and the creation and implementation of related analytics, data optimization and data standardization processes and services.

(h) The Employer shall have “Cause” to terminate the Executive’s employment hereunder upon: (i) the willful misconduct or an act of dishonesty of the Executive with regard to the Company or any of its Affiliates, which in either case, results in material harm to the Company or such Affiliate; (ii) the willful and continued failure of the Executive to perform his duties with the Employer or any of its Affiliates (other than any such failure resulting from Disability), which failure is not remedied within 30 days after receiving written notice thereof; (iii) the indictment of the Executive of (or the plea by the Executive of guilty or nolo contendere to) any felony or conviction of a misdemeanor involving moral turpitude ; or (iv) a material breach by the Executive of any material provision of this Agreement or material policy of the Company, or any other written agreement with the Company or its Affiliates, which breach is not remedied within 10 days after receiving written notice thereof.

(i) “Change of Control” shall mean any arm’s-length transaction or a series of related arm’s-length transactions as a result of which any Person or group of Persons shall (A) acquire (whether by purchase, exchange, tender offer, merger, consolidation, recapitalization, redemption, reorganization, issuance of capital stock or otherwise), directly or indirectly, more than 50% of the voting power of the Company or more than 50% of the Company’s Common Stock issued and outstanding immediately prior to such transaction or series of transactions, or (B) acquire assets constituting all or substantially all of the assets of the Company; provided,  however, that in no event shall a Change of Control be deemed to include (i) any transaction effected solely for the purpose, and having the sole effect, of (A) changing, directly or indirectly, the domicile or form of organization or the organizational structure of the Company or any of its Subsidiaries or (B) contributing assets or equity to entities controlled by the Company (or owned by the stockholders of the Company in substantially the same proportions as the stockholders own of the Company immediately prior to such contribution).

(j) “Code” shall mean the Internal Revenue Code of 1986, as amended.

(k) “Company” shall mean Connolly Superholdings, Inc., a Delaware Corporation.

(l) “Date of Termination” shall mean (i) if the Executive’s employment is terminated due to the Executive’s death, the date of the Executive’s death; (ii) if the Executive’s employment is terminated due to the Executive’s Disability, the date determined pursuant to Section 4(a)(ii); or (iii) if the Executive’s employment is terminated pursuant to Section 4(a)(iii)-(vi) either the date indicated in the Notice of Termination or the date specified by the Employer pursuant to Section 4(b), whichever is earlier.

(m) “Disability” shall mean the Executive’s inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that can be expected to last for a continuous period of not less than 180 days in any consecutive 360 day period.

(n) “Effective Date” shall have the meaning set forth in the recitals hereto.

(o) “Employer” shall have the meaning set forth in the preamble hereto.

(p) “Executive” shall have the meaning set forth in the preamble hereto.

(q) The Executive shall have “Good Reason” to terminate the Executive’s employment hereunder after the occurrence of one or more of the following conditions without the Executive’s consent: (i) any material adverse change by the Employer in the Executive’s Annual Base Salary, position, duties, responsibilities, authority, title or reporting obligations, or the assignment of duties to the Executive by the Employer or its Affiliates that are materially inconsistent with the Executive’s position; (ii) a material change in the geographic location at which the Employer or its Affiliates requires the Executive to be based, such that the Executive’s principal office moves at least 50 miles; or (iii) any other material breach by the Employer of a material provision of this Agreement or any other written agreement with the Executive. Notwithstanding the foregoing, no termination for Good Reason will be effective unless: (A) the Executive provides the Employer with at least thirty (30) days prior written notice of his intent to resign for Good Reason (which notice must be provided within sixty (60) days following the occurrence of the event(s) purported to constitute Good Reason); (B) the Employer has not remedied the alleged violation(s) within the thirty (30) day period; and (C) the Executive’s resignation becomes effective no later than thirty (30) days after the Employer has either failed to cure such event or indicated that it will not cure such event.

(r) “Notice of Termination” shall have the meaning set forth in Section 4(b).

(s) “Person” shall mean any individual, natural person, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), incorporated or unincorporated association, governmental authority, firm, society or other enterprise, organization or other entity of any nature.

(t) “Release” shall have the meaning set forth in Section 5(b).

(u) “Release Expiration Date” shall have the meaning set forth in Section 20(c).

(v) “Section 409A” shall mean Section 409A of the Code and the Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date.

(w) “Severance Period” shall have the meaning set forth in Section 5(b).

(x) “Term” shall have the meaning set forth in Section 2(a).

2. Employment

(a) Term. The Employer hereby employs the Executive, and the Executive hereby accepts such employment, in each case pursuant to the terms of this Agreement, for the

period commencing on October 31, 2017 (the “Effective Date”), and ending on the date of termination of the Executive’s employment in accordance with Section 4 hereof (the “Term”).

(b) Position and Duties. During the Term, the Executive: (i) shall serve as Senior Vice President and Chief Financial Officer of the Company, with responsibilities, duties and authority customary for such position, subject to direction by the Company’s Chief Executive Officer; (ii) shall report directly to the Company’s Chief Executive Officer; (iii) shall devote substantially all the Executive’s working time and efforts to the business and affairs of the Company and its Affiliates; and (iv) agrees to observe and comply with the Employer’s rules and policies as adopted by the Employer from time to time. The parties acknowledge and agree that Executive’s duties, responsibilities and authority may include services for one or more Affiliates of the Employer. 

3. Compensation and Related Matters

(a) Annual Base Salary. During the Term, the Executive shall receive a base salary at a rate of $435,000 per annum, which shall be paid in accordance with the customary payroll practices of the Employer, subject to review by the Board in its sole discretion (the “Annual Base Salary”).

(b) Annual Bonus. With respect to each Company fiscal year that commences during the Term, the Executive shall be eligible to receive an annual performance-based cash bonus (the “Annual Bonus”) with a target amount of 70%  of the Annual Base Salary earned during such fiscal year, which shall be payable based upon the attainment of individual and Company performance goals established each fiscal year by the Board or the Compensation Committee thereof. Each such Annual Bonus shall be payable on, or at such date as is determined by the Board within 90 days following, the last day of the fiscal year with respect to which it relates. Except as provided in Section 5, notwithstanding any other provision of this Section 3(b), no bonus shall be payable with respect to any fiscal year unless the Executive remains continuously employed with the Employer during the period beginning on the Effective Date and ending on the applicable bonus payment date.

(c) Benefits. During the Term, the Executive shall be eligible to participate in employee benefit plans, programs and arrangements of the Employer in accordance with their terms, as in effect from time to time, and as are generally provided by the Employer to its senior executive officers.

(d) Vacation; Holidays. During each calendar year during the Term, the Executive shall also be entitled to vacation time and paid holidays on the same basis as other senior executives of the Employer, subject to the terms and conditions of the Employer’s vacation and holiday policies as in effect from time to time.

(e) Business Expenses. During the Term, the Employer shall reimburse the Executive for all reasonable, documented, out-of-pocket travel and other business expenses incurred by the Executive in the performance of the Executive’s duties to the Company and its Affiliates in accordance with the Employer’s applicable expense reimbursement policies and procedures.

(f) Indemnification. During the Term and for so long thereafter as liability exists with regard to the Executive’s activities during the Term on behalf of the Company and its Affiliates, the Employer or its Affiliates shall indemnify the Executive (other than in connection with the Executive’s gross negligence or willful misconduct) in accordance with the Employer’s customary indemnification policies and procedures which are applicable to the Employer’s officers and directors.

4. Termination

(a) Circumstances

(i) Death. The Executive’s employment hereunder shall terminate upon the Executive’s death.

(ii) Disability. If the Executive incurs a Disability, the Employer may give the Executive written notice of its intention to terminate the Executive’s employment. In that event, the Executive’s employment with the Employer and its Affiliates shall terminate, effective on the later of the thirtieth (30th) day after receipt of such notice by the Executive or the date specified in such notice; provided that, within the thirty (30) day period following receipt of such notice, the Executive shall not have returned to full-time performance of the Executive’s duties hereunder.

(iii) Termination for Cause. The Employer may terminate the Executive’s employment for Cause.

(iv) Termination without Cause. The Employer may terminate the Executive’s employment without Cause.

(v) Resignation for Good Reason. The Executive may resign from the Executive’s employment for Good Reason.

(vi) Resignation without Good Reason. The Executive may resign from the Executive’s employment without Good Reason.

(b) Notice of Termination. Any termination of the Executive’s employment by the Employer or by the Executive under this Section 4 (other than a termination pursuant to Section 4(a)(i) above) shall be communicated by a written notice to the other party hereto (a “Notice of Termination”): (i) indicating the specific termination provision in this Agreement relied upon, (ii) except with respect to a termination pursuant to Sections 4(a)(iv) or (vi), setting forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated, and (iii) specifying a Date of Termination which, if submitted by the Executive, shall be at least thirty (30) days following the date of such notice; provided,  however, that a Notice of Termination delivered by the Employer pursuant to Section 4(a)(ii) shall not be required to specify a Date of Termination, in which case the Date of Termination shall be determined pursuant to Section 4(a)(ii); provided;  further, that, notwithstanding the foregoing, in the event that the Executive delivers a Notice of Termination to

the Employer, the Employer may, in its sole discretion, accelerate the Date of Termination to any date that occurs following the date of Employer’s receipt of such Notice of Termination (even if such date is prior to the date specified in such Notice of Termination). A Notice of Termination submitted by the Employer (other than a Notice of Termination under Section 4(a)(ii)) may provide for a Date of Termination on the date the Executive receives the Notice of Termination, or any date thereafter elected by the Employer in its discretion. The failure by the Employer or the Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of the Employer or the Executive hereunder or preclude the Employer or the Executive from asserting such fact or circumstance in enforcing the Employer’s or the Executive’s rights hereunder.

5. Company Obligations Upon Termination of Employment

(a) In General. Upon a termination of the Executive’s employment for any reason, the Executive (or the Executive’s estate) shall be entitled to receive: (i) any portion of the Executive’s Annual Base Salary through the Date of Termination not theretofore paid, (ii) any expenses owed to the Executive under Section 3(e), (iii) any accrued but unused vacation pay owed to the Executive pursuant to Section 3(d), and (iv) any amount arising from the Executive’s participation in, or benefits under, any employee benefit plans, programs or arrangements under Section 3(c), which amounts shall be payable in accordance with the terms and conditions of such employee benefit plans, programs or arrangements. Except as otherwise set forth in Section 5(b) below, the payments and benefits described in this Section 5(a) shall be the only payments and benefits payable in the event of the Executive’s termination of employment for any reason.

(b) Termination without Cause or for Good Reason. In the event of the Executive’s termination of employment by the Employer without Cause pursuant to Section 4(a)(iv) or by the Executive for Good Reason pursuant to Section 4(a)(v), in addition to the payments and benefits described in Section 5(a) above, the Employer shall, subject to Section 20 and Section 5(c) and subject to the Executive’s execution and non-revocation of a waiver and release of claims agreement in the Employer’s customary form (a “Release”), as of the Release Expiration Date, in accordance with Section 20(c):

(i) Pay to the Executive an amount equal to twelve (12) months of Annual Base Salary at the rate in effect immediately prior to the Date of Termination, payable in a single lump sum;

(ii) Pay to the Executive an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Executive pursuant to Section 3(b) if the Executive was still employed as of the applicable bonus payment date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the number of full weeks elapsed during the fiscal year during which such termination of employment occurs on or prior to the Date of Termination, to (y) 52. Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 20 and Section 5(c), be paid to Executive in accordance with Section 3(b) as if the Executive was still employed on the applicable bonus payment date, but in no event earlier than January 1, or later than December 31, of the calendar year immediately following the calendar year in which the Date of Termination occurs; and 

(iii) If the Executive elects to continue coverage under the Employer’s group medical and dental plans in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Employer will pay to the Executive an amount equal to the premium cost of the Executive’s coverage and that of the Executives eligible dependents under those plans for a period of twelve (12) months (the “Benefit Continuation Period”), at the same rate the Employer contributed to the Executive’s premium cost of coverage on the Termination Date. The Employer will make such premium contributions by direct deposit to the Executive in a single lump sum payment on the same date as any amount payable to the Executive pursuant to Section 5(b)(i). The Executive must directly pay the full premium costs during the Benefit Continuation Period plus an administrative fee of up to 2% of such premium costs. The Executive acknowledges and agrees that he or she is not an “assistance eligible individual”, as that term is defined in the amendments to COBRA made by the enactment of the American Recovery and Reinvestment Act of 2009.

(c) Termination following a Change of Control. In the event of the Executive’s termination of employment by the Employer without Cause pursuant to Section 4(a)(iv) or by the Executive for Good Reason pursuant to Section 4(a)(v) within one year following a Change of Control, then in addition to the payments and benefits described in Sections 5(a) and 5(b) above, the Executive shall be entitled to receive accelerated vesting for 100% of all unvested equity awards that are subject to time-based vesting held by the Executive immediately prior to the Change of Control.

(d) Breach of Restrictive Covenants. Notwithstanding any other provision of this Agreement, no payment or benefit shall be made or provided pursuant to Section 5(b) following the date the Executive first violates any of the restrictive covenants set forth in Section 6 or any other written agreement between the Executive and the Employer or any of its Affiliates. 

(e) Complete Severance. The provisions of this Section 5 shall supersede in their entirety any severance payment or benefit obligations to the Executive pursuant to the provisions in any severance plan, policy, program or other arrangement maintained by the Employer or any of its Affiliates.

6. Restrictive Covenants. In consideration for the potential payments to the Executive hereunder, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive agrees to the following: 

(a) Confidentiality. The Executive shall not, at any time during the Term or at any time thereafter, directly or indirectly, use for the benefit of himself or any third party or disclose to any Person, firm, company or other entity (other than the Company or any of its Affiliates) any Confidential Information without the prior written consent of the Employer or the Company, except (i) as required in the performance of his duties to the Employer and its Affiliates, (ii) to the extent that the Executive is required by law, subpoena or court order to disclose any Confidential Information (provided that in such case, the Executive shall (1) provide the Employer with the earliest notice possible that such disclosure is or may be required, (2) reasonably cooperate with the Employer and its Affiliates, at the Employer’s expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of such Confidential Information and (3) disclose only that Confidential Information which he is legally required to disclose), (iii)

disclosing information that has been or is hereafter made public through no act or omission of the Executive in violation of this Agreement or any other confidentiality obligation or duty owed to the Employer or its Affiliates, (iv) disclosing information and documents to his attorney or tax adviser for the purpose of securing legal or tax advice (provided that such Persons agree to keep such information confidential) or (v) disclosing only the post-employment restrictions in this Agreement in confidence to any potential new employer. The Executive shall take all actions necessary to protect the integrity of the business plans, customer lists, statistical data and compilations, agreements, contracts, manuals or other materials, in whatever form, of the Company and its Affiliates that contain Confidential Information, and upon the termination of the Executive’s employment, the Executive agrees that all Confidential Information in his possession or under his control, directly or indirectly, that is in writing, computer generated or other tangible form (together with all duplicates thereof) will forthwith be returned to the Company and will not be retained by the Executive or furnished to any Person, either by sample, facsimile, film, audio or video cassette, electronic data, verbal communication or any other means of communication. The Executive agrees that the provisions of this Section 6 are reasonable and necessary to protect the proprietary rights of the Company and its Affiliates in the Confidential Information and trade secrets, goodwill and reputation. In addition, the terms and conditions of this Agreement shall remain strictly confidential, and the Executive shall not disclose the terms and conditions hereof to any Person, other than immediate family members, legal advisors or personal tax or financial advisors, provided that each such Person agrees to keep such terms and conditions confidential.

(b) Non-Competition. The Executive shall not, during the Term and for a period of two (2) years thereafter (the “Non-Compete Period”), directly or indirectly, whether for himself or on behalf of any other Person, engage in, own, manage, operate, advise, provide financing to, control or participate in the ownership, management or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any financial interest (whether as a stockholder, director, officer, partner, consultant, proprietor, agent or otherwise) in, or aid or assist anyone else in the conduct of, any business that competes, directly or indirectly, with the Company or any of its Affiliates in the Business or is otherwise engaged in activities competitive with the Company or any of its Affiliates in the Business, in any jurisdiction in the United States of America (including, without limitation, the states of Connecticut, Georgia, Pennsylvania, Kentucky, Massachusetts, Minnesota, Texas and Utah), or any other country in the world where the Company or any of its Affiliates are engaged in the Business (the “Restricted Area”). The Executive agrees that the Restricted Area is reasonable taking into consideration the nature and scope of the operations of the Company and its Affiliates in the Business and the Executive’s role in such operations. It shall not be a violation of this Section 6(b) for the Executive to own less than one percent (1%) of the outstanding shares of a corporation that is engaged in the Business whose shares are listed on a national stock exchange or traded in accordance with the automated quotation system of the National Association of Securities Dealers.

(c) Non-Solicitation. The Executive shall not, during the Non-Compete Period, either directly or indirectly, and whether for himself or on behalf of any other Person; (i) seek to persuade any employee of the Company or any of its Affiliates to discontinue or diminish his or her employment therewith or seek to persuade any employee or former employee of the Company or any of its Affiliates (who was employed by the Company or any of its Affiliates at any time during the twelve (12) month period prior to the termination of the Executive’s employment with the Employer) to become employed or to provide consulting or contract services to a business

competitive with the Company or its Affiliates in the Business; (ii) solicit, employ or engage, or cause to be solicited, employed, or engaged, any person who is or was employed by the Company or any of its Affiliates at any time during the twelve (12) month period prior to the termination of the Executive’s employment with the Employer; or (iii) solicit, encourage, or induce any contractor, agent, client, customer, supplier, or the like of the Company or any of its Affiliates to terminate or diminish its/his relationship with, the Company or any of its Affiliates, or to refrain from entering into a relationship with the Company or any of its Affiliates, including, without limitation, any prospective contact, contractor, agent, client, customer, or the like of the Company or any of its Affiliates; provided,  however, that the foregoing shall not prohibit the Executive from placing any general advertisements for employees and hiring individuals that respond to such general advertisements, so long as such general advertisements are not directed to any employees of the Company or any of its Affiliates.

(d) Non-Disparagement. The Executive agrees not to disparage the Company or the Employer, any of their products or practices, or any of their directors, officers, agents, representatives, partners, members, equity holders or Affiliates, either orally or in writing, at any time, and the Employer agrees to instruct the Employer’s and the Company’s directors and officers as of the Date of Termination not to disparage the Executive, either orally or in writing, at any time; provided that the Executive, the Company and its Affiliates, and their respective directors and officers, may confer in confidence with their respective legal representatives and make truthful statements as required by law.

(e) Remedies. In addition to whatever other rights and remedies the Company and its Affiliates may have at equity or in law (including, without limitation, the right to seek monetary damages), if the Executive breaches any of the provisions contained in this Section 6, (i) the Company and its Affiliates shall have the right immediately to terminate the Executive’s right to any amounts payable under this Agreement and (ii) the Company and its Affiliates shall have the right to injunctive relief, without the requirement to prove actual damages or to post any bond or other security, and to obtain the costs and reasonable attorneys’ fees they incur in enforcing their rights under this Agreement. The Executive acknowledges that (A) his breach of this Section 6 would cause irreparable injury to the Company and/or its Affiliates, (B) money damages alone would not provide an adequate remedy for the Company or its Affiliates, (C) his services to the Company are special, unique and extraordinary, and (D) the restrictions in this Section 6 (x) are no greater than required to protect the Company’s legitimate protectable interests (including, without limitation, the Confidential Information and the Company’s goodwill), (y) do not impose undue hardship on the Executive, and (z) are reasonable in duration and geographic scope. The Executive further acknowledges that (I) any breach or claimed breach of the provisions set forth in this Agreement shall not be a defense to enforcement of the restrictions set forth in this Section 6 and (II) the circumstances of the Executive’s termination of employment with the Employer and its Affiliates shall have no impact on his obligations under this Section 6.

(f) Blue Pencil. In the event the terms of this Section 6 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to

the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action. 

(g) Tolling During Periods Of Breach. The Executive and the Employer agree and intend that the Executive’s obligations under this Section 6 be tolled during any period that the Executive is in breach of any of the obligations under this Section 6, so that the Company and each Affiliate of the Company are provided with the full benefit of the restrictive periods set forth herein.

(h) Third Party Beneficiary. The Company and each Affiliate of the Company are intended third party beneficiaries of the terms of this Section 6 and shall have the right to enforce the provisions of this Section 6 as if they were a party hereto. 

(i) Survival. The Executive’s obligations under this Section 6 shall survive the termination of this Agreement and the termination of his employment with the Employer.

7. Assignment and Successors

8. Governing Law; Venue

9. Validity

10. Notices

(a) If to the Employer:

(b) If to the Executive, at the address set forth on the signature page hereto.

11. Counterparts

12. Entire Agreement

13. Amendments; Waivers

14. No Inconsistent Actions

15. Construction

16. Enforcement

17. Withholding

18. Absence of Conflicts; Executive Acknowledgement; Confidentiality

19. Survival

20. Section 409A.

(a) General. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and incorporate the terms and conditions required by, Section 409A. Notwithstanding any provision of this Agreement to the contrary, in the event that the Employer determines that any amounts payable hereunder will be immediately taxable to the Executive under Section 409A, the Employer reserves the right (without any obligation to do so or to indemnify the Executive for failure to do so) to (i) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Employer determines to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement and to avoid less favorable accounting or tax consequences for the Employer and/or (ii) take such other actions as the Employer determines to be necessary or appropriate to exempt the amounts payable hereunder from Section 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. Notwithstanding anything herein to the contrary, in no event shall any liability for failure to comply with the requirements of Section 409A be transferred from the Executive or any other individual to the Employer or any of its Affiliates, employees or agents pursuant to the terms of this Agreement or otherwise.

(b) Separation from Service under Section 409A. Notwithstanding any provision to the contrary in this Agreement: (i) no amount shall be payable pursuant to Section 5(b) unless the termination of the Executive’s employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the Department of Treasury Regulations; (ii) for purposes of Section 409A, the Executive’s right to receive installment payments pursuant to Section 5(b) shall be treated as a right to receive a series of separate and distinct payments; and (iii) to the extent that any reimbursement of expenses or in-kind benefits constitutes “deferred compensation” under Section 409A, such reimbursement or benefit shall be provided no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year. Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the termination benefits to which the 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 the Executive’s termination benefits shall not be provided to the Executive prior to the earlier of (A) the expiration of the six-month period

measured from the date of the Executive’s “separation from service” with the Company (as such term is defined in the Treasury Regulations issued under Section 409A of the Code) or (B) the date of the Executive’s death; upon the earlier of such dates, all payments deferred pursuant to this sentence shall be paid in a lump sum to the Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein.

(c) Release. Notwithstanding anything to the contrary in this Agreement, to the extent that any payments of “nonqualified deferred compensation” (within the meaning of Section 409A) due under this Agreement as a result of the Executive’s termination of employment are subject to the Executive’s execution, delivery and non-revocation of a Release, (i) the Employer shall deliver the Release to the Executive within seven (7) days following the Date of Termination, and (ii) if the Executive fails to execute the Release on or prior to the Release Expiration Date (as defined below) or timely revokes his acceptance of the Release thereafter, the Executive shall not be entitled to any payments or benefits otherwise conditioned on the Release. For purposes of this Section 20(c), “Release Expiration Date” shall mean the date that is twenty-one (21) days following the date upon which the Employer timely delivers the Release to the Executive, or, in the event that the Executive’s termination of employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967), the date that is forty-five (45) days following such delivery date. To the extent that any payments of nonqualified deferred compensation (within the meaning of Section 409A) due under this Agreement as a result of the Executive’s termination of employment are delayed pursuant to Section 5(b) and this Section 20(c), such amounts shall be paid in a lump sum on the first payroll date to occur on or after the 60th day following the Date of Termination, provided that, as of such 60th day, the Executive has executed and has not revoked the Release (and any applicable revocation period has expired). 

21. Compensation Recovery Policy. The Executive acknowledges and agrees that, to the extent the Employer or the Company adopts any clawback or similar policy pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, and any rules and regulations promulgated thereunder, he shall take all action necessary or appropriate to comply with such policy (including, without limitation, entering into any further agreements, amendments or policies necessary or appropriate to implement and/or enforce such policy).