Notwithstanding anything to the contrary in this Agreement, no severance pay or benefits to be paid or provided to Executive, if any, pursuant to this Agreement that, when considered together with any other severance payments or separation benefits, are considered deferred compensation not exempt under Section 409A (together, the “Deferred Payments”) will be paid or otherwise provided until Executive has a “separation from service” within the meaning of [Section 409A]. And for purposes of this Agreement, any reference to “termination of employment,” “termination” or any similar term shall be construed to mean a “separation from service” within the meaning of [Section 409A]. Similarly, no severance payable to Executive, if any, pursuant to this Agreement that otherwise would be exempt from [Section 409A] pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until Executive has a “separation from service” within the meaning of [Section 409A].

[Section 409A]. “[Section 409A]” means Code Section 409A, and the final regulations and any guidance promulgated thereunder or any state law equivalent.

The intent of the parties is that payments and benefits under the Plan comply with or be exempt from Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and the Company shall have complete discretion to interpret and construe the Plan and any associated documents in any manner that establishes an exemption from (or compliance with) the requirements of Code Section 409A. If for any reason, such as imprecision in drafting any provision, the Plan does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, such provision shall be considered ambiguous as to its exemption from (or compliance with) Code Section 409A and shall be interpreted by the Company in a manner consistent with such intent, as determined in the discretion of the Company.

[Section 3.1] of the Construction Agency Agreement is hereby amended by deleting [clause (c)] in its entirety and substituting the following therefor:

[Section 7.9(w)(iv)] of the Credit Agreement shall be amended and restated in its entirety to read as follows:

[Section 409A]. To the extent applicable, this Grant Agreement shall be construed and administered consistently with the intent to comply with or be exempt from the requirements of Section 409A of the Code and any state law of similar effect (i.e., applying the “short-term deferral” rule described in Treas. Reg. § 1.409A-1(b)(4) and/or another exemption). Where the Grant Agreement specifies a window during which a payment may be made, the payment date within such window shall be determined by the Company in its sole discretion.

[Section 5.1] (Commercial Diligence) of the License Agreement. [Section 5.1] of the License Agreement is hereby amended and restated to read in its entirety as follows:

[Section 5.2] (Milestones and Fees for Development of Licensed Products) of the License Agreement. [Section 5.2] of the License Agreement is hereby amended and restated to read in its entirety as follows:

[Section 1.1(a)] of the Warrant is hereby amended as follows: the words “on or after the Stockholder Approval Date and” are hereby deleted.

[Section 1.01] (Defined Terms) of the Credit Agreement is hereby amended by replacing “$120,000,000” in the definition of “Permitted Receivables Sale Transaction” with “$200,000,000”.