ServiceMagic 2010 Annual Report Download - page 131

with any payments or benefits paid or provided to Executive under this Agreement or any Plan , provided that the steps so
requested do not cause
the Company to incur any additional costs (other than incidental costs) associated with taking such steps. Any modification to the terms of this
Agreement or any Plan resulting from the immediately preceding sentence shall maintain the original intent and economic benefit to Executive
of the applicable provision of this Agreement or such Plan, to the maximum extent reasonably possible without violating any applicable
requirement of Section 409A and without requiring any additional payments to Executive.
(d) To the extent that the reimbursement of any expenses or the provision of any in-kind benefits under this Agreement or under any Plan
constitute “deferred compensation” under Section 409A (after taking into account all exclusions applicable to such payments or benefits under
Section 409A), (i) any such reimbursement shall be paid as soon as administratively practicable after the expense in question has been incurred
and Executive has submitted to the Company the documentation required for the reimbursement of such expense, but in no event later than
December 31 of the year following the year in which the expense was incurred; (ii) the amount of such expenses eligible for reimbursement, or
in-kind benefits to be provided, during any one calendar year shall not affect the amount of such expenses eligible for reimbursement, or in-kind
benefits to be provided, in any other calendar year; and (iii) Executive’s right to receive such reimbursements, or in-kind benefits, shall not be
subject to liquidation or exchange for any other benefit.
(e)
In the case of any amounts payable to Executive under this Agreement, or under any Plan, that may be treated as payable in the form of
“a series of installment payments”, as defined in Treasury Regulation Section 1.409A-2(b)(2)(iii), Executive’s right to receive such payments
shall be treated as a right to receive a series of separate payments for purposes of such Treasury Regulation; provided , however , that in the case
of any such amounts so payable under any Plan, the foregoing provision shall apply to the amounts so payable thereunder only if either
(x) Executive first acquires a legally binding right to receive such amounts on or after the Effective Date, or (y) if he first acquired such right
before such date, such Plan had a comparable separate payment designation provision in effect for the amounts so payable under the Plan either
at the time Executive first acquired his legally binding right to such payments, or if later, on December 31, 2008.
(f) For purposes of the foregoing, “Plan” shall mean any plan, program, agreement (other than this Agreement) or other arrangement
maintained by the Company or any of its affiliates that is a “nonqualified deferred compensation plan” within the meaning of Section 409A and
under which any payments or benefits are to be made or provided to Executive, to the extent they constitute a deferral of compensation subject to
the requirements of Section 409A after taking into account all exclusions applicable to such payments or benefits under Section 409A.
10A. INDEMNIFICATION . The Company shall indemnify, defend and hold harmless Executive to the fullest extent permitted by
applicable law in effect at the time of the subject act or omission, and shall advance to Executive reasonable attorneys’
fees and expenses as such
fees and expenses are incurred (subject to an undertaking from Executive to repay such advances if it shall be finally determined by a judicial
decision which is not subject to further appeal that Executive was not entitled to the reimbursement of such fees and expenses), and Executive
will be entitled to the protection of any insurance policies that the Company may elect to maintain
5