Performance-Based Compensation. Notwithstanding the foregoing requirements as to the timing of deferral elections with respect to Base Salary, an irrevocable deferral election pertaining to Performance Cash or Performance Shares which qualify as “performance-based compensation” may be made by timely delivering an election form to the Committee, in accordance with the terms of the Plan, no later than six months before the end of the applicable performance period, provided that such compensation is not yet readily ascertainable. “Performance-based compensation” shall be compensation based on services performed over a period of at least twelve (12) months, in accordance with section 409A of the Code and related guidance. (For this purpose, restricted stock does not qualify as “performance-based compensation” unless subject to a performance-based vesting condition or as otherwise qualified under section 409A of the Code and related guidance.) The deferral election for the preceding performance period, if any, shall not automatically carry over and continue in effect for subsequent performance period; rather, an affirmative election for each period shall be required.

With respect to bonuses that are performance-based compensation, and based upon a performance period of at least twelve months, the initial deferral election may be made as late as six months before the end of the performance period, provided that the Participant performed services continuously from the date upon which the performance criteria are established through the date upon which the Participant makes the initial deferral election. In no event may an election to defer performance-based compensation be made after such compensation has become both substantially certain to be paid and readily ascertainable. The term performance-based compensation means compensation where the amount of, or entitlement to, the compensation is contingent on the satisfaction of pre-established organizational or individual performance criteria relating to a performance period of at least twelve consecutive months in which the Eligible Employee performs services.