Common use of 409A Compliance Clause in Contracts

409A Compliance. With the exception of the terms of any outstanding long term incentive awards, the parties agree that the payments and benefits under Section II of this Agreement will, to the maximum extent possible, not be subject to the 6 month delay in payment described in Section 409A of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”) due to application of exemptions under Section 409A, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent necessary to comply with Section 409A, be subject to a 6-month delay provided in Section 409A. For purposes of Section 409Athe right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, Employee, as specified under this Agreement, that are not exempt from Section 409A, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

409A Compliance. With Notwithstanding the exception of the terms of any outstanding long term incentive awardsother provisions hereof, the parties agree that the payments and benefits under Section II of this Agreement will, is intended to comply with the maximum extent possible, not be subject to the 6 month delay in payment described in Section requirements of section 409A of the Internal Revenue Code of 1986, as amended. Accordingly, all provisions herein, or incorporated by reference, shall be construed and the Treasury Regulations thereunder (“Section 409A”) due to application of exemptions under Section 409A, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent necessary interpreted to comply with section 409A and if necessary, any such provision shall be deemed amended comply with Section 409A and the regulations thereunder. Further, for purposes of the limitations on nonqualified deferred compensation under section 409A, be subject to a 6-month delay provided in Section 409A. For purposes each payment of Section 409Athe right to a series of installment payments compensation under this Agreement shall be treated as a right to a series separate payment of separate paymentscompensation for purposes of applying the Section 409A deferral election rules and the exclusion from section 409A for certain short-term deferral amounts. With respect to any reimbursement Any amounts payable solely on account of expenses of, or any provision an involuntary separation from service of in-kind benefits to, Employee, as specified under this Agreement, that are not exempt the Executive within the meaning of section 409A shall be excludible from Section the requirements of section 409A, such reimbursement either as involuntary separation pay or as short-term deferral amounts (e.g., amounts payable under the schedule prior to March 15 of expenses or provision the calendar year following the calendar year of in-kind benefits shall be subject involuntary separation) to the following conditions: (1) the expenses eligible for reimbursement maximum possible extent. Any reimbursements or the amount of in-kind benefits provided under this Agreement shall be made or provided in one taxable accordance with the requirements of section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year shall may not affect the expenses eligible for reimbursement reimbursement, or the amount of in-in kind benefits provided to be provided, in any other taxable calendar year; , (2iii) the reimbursement of an eligible expense shall will be made no later than the end last day of the calendar year after following the year in which such the expense was is incurred; , and (3iv) the right to reimbursement or in-in kind benefits shall is not be subject to liquidation or exchange for another benefit. Any severance payment to the Executive that is conditioned upon the execution and non-revocation of a release of claims shall be paid in the taxable year in which ends the maximum period of time that the Executive had to consider and revoke such release, regardless of when such release is actually executed.

409A Compliance. With the exception of the terms of any outstanding long term incentive awards, the parties agree that the payments and benefits under Section II of this Agreement will, to the maximum extent possible, not be subject to the 6 month delay in payment described in Section 409A of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”) due to application of exemptions under Section 409A, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”). However, Employee Executive agrees that if Employee Executive is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent necessary to comply with Section 409A, be subject to a 6-month delay provided in Section 409A. For purposes of Section 409Athe right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, EmployeeExecutive, as specified under this Agreement, that are not exempt from Section 409A, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

409A Compliance. With the exception of the terms of any outstanding long term incentive awards, the parties agree that the payments If and benefits under Section II of this Agreement will, to the maximum extent possible, not any amount or benefit payable or due hereunder shall be subject deemed to constitute “deferred compensation” within the 6 month delay in payment described in meaning of Section 409A of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”) due to application of exemptions under Section 409A1986, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) as amended (the “two times, two year ruleCode”), including any regulation or other guidance promulgated thereunder, the parties intend that this Agreement shall be interpreted and construed in a manner consistent with the applicable provisions thereof. However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent necessary to comply with Section 409A, be subject to a 6-month delay provided in Section 409A. For purposes of Section 409Athe right to a series of installment payments hereof: (a) each payment under this Agreement shall be treated as a right to a series of separate payments. With respect to any reimbursement of expenses ofpayment; (b) the exclusions for short-term deferrals, or any provision of in-kind benefits tobenefits, Employee, and payments on account of involuntary termination of employment shall be applied to the fullest extent applicable; (c) payments to be made upon a termination of employment or on account of Executive’s Termination Date shall be made upon Executive’s “separation from service” as determined under Code Section 409A; (d) any reference to the termination of Executive’s employment or to Executive’s Termination Date or words of similar import shall mean and be deemed to refer to the date of his “separation from service” within the meaning of Code Section 409A; (e) if Executive is a “specified under this Agreement, that are not exempt from employee” within the meaning of Code Section 409A, such reimbursement any amount or benefit payable on account of expenses Executive’s separation from service, shall be delayed for six months as required under Code Section 409A, and shall be paid when first permitted, without liability for interest or provision loss of investment opportunity thereon; (f) all reimbursements and in-kind benefits shall payments to be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in during one taxable calendar year shall not affect the expenses eligible for reimbursement or the amount of reimbursements and in-kind benefits payments to be provided in any other taxable calendar year; (2g) the any reimbursement of an eligible expense shall be made promptly after proper substantiation of such expenses, but in no event later than the end last day of the calendar year after following the calendar year in which such the expense was incurred; and (3h) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another any other benefit, except as expressly provided herein; and (i) any amount that may be paid in one of two calendar years shall be paid in the second such year.

409A Compliance. With Notwithstanding the exception of the terms of any outstanding long term incentive awardsother provisions hereof, the parties agree that the payments and benefits under Section II of this Agreement will, is intended to comply with the maximum extent possible, not be subject to the 6 month delay in payment described in Section requirements of section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations regulations thereunder (“Section 409A”) due ). Accordingly, all provisions herein, or incorporated by reference, shall be construed and interpreted to application comply with Section 409A and if necessary, any such provision shall be deemed amended comply with Section 409A. Further, for purposes of exemptions the limitations on nonqualified deferred compensation under Section 409A, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred each payment of compensation subject to Section 409A will, to the extent necessary to comply with Section 409A, be subject to a 6-month delay provided in Section 409A. For purposes of Section 409Athe right to a series of installment payments under this Agreement shall be treated as a right to a series separate payment of separate paymentscompensation for purposes of applying the Section 409A deferral election rules and the exclusion from Section 409A for certain short-term deferral amounts. With respect to any reimbursement Any amounts payable solely on account of expenses of, or any provision an involuntary separation from service of in-kind benefits to, Employee, as specified under this Agreement, that are not exempt the Executive within the meaning of Section 409A shall be excludible from the requirements of Section 409A, such reimbursement of expenses either as involuntary separation pay or provision of inas short-kind benefits shall be subject term deferral amounts (e.g., amounts payable under the schedule prior to the date that is two and one-half (2.5) months following conditions: (1the end of the fiscal year of involuntary separation) to the expenses eligible for reimbursement maximum possible extent. Any reimbursements or the amount of in-kind benefits provided under this Agreement shall be made or provided in one taxable accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year shall may not affect the expenses eligible for reimbursement reimbursement, or the amount of in-in kind benefits provided to be provided, in any other taxable calendar year; , (2iii) the reimbursement of an eligible expense shall will be made no later than the end last day of the calendar year after following the year in which such the expense was is incurred; , and (3iv) the right to reimbursement or in-in kind benefits shall is not be subject to liquidation or exchange for another benefit. Any severance payment to the Executive that is conditioned upon the execution and non-revocation of a release of claims shall be paid in the taxable year in which ends the maximum period of time that the Executive had to consider and revoke such release, regardless of when such release is actually executed.

409A Compliance. With The following rules shall apply, to the exception extent necessary, with respect to distribution of the terms of any outstanding long term incentive awards, the parties agree that the payments and benefits under Section II of this Agreement willbenefits, if any, to the maximum extent possible, not be subject provided to the 6 month delay in payment described in Executive under this Agreement. This Agreement is intended to comply with or be exempt from Section 409A of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”) due and the Parties hereto agree to application of exemptions under Section 409Ainterpret, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) (apply and administer this Agreement in the “two times, two year rule”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent least restrictive manner necessary to comply with Section 409A, be subject therewith and without resulting in any increase in the amounts owed hereunder by the Company. The severance payments and benefits pursuant to a 6-month delay provided in Section 409A. For this Agreement shall begin only upon the date of Executive’s “separation from service” for purposes of Section 409Athe right to 409A. It is intended that each installment of the severance payments and benefits provided under this Agreement, if any, shall be treated as a series separate “payment” for purposes of installment payments Section 409A. All reimbursements and in-kind benefits provided under this Agreement shall be treated as a right made or provided in accordance with the requirements of Section 409A, to a series of separate payments. With respect to any reimbursement of expenses of, the extent that such reimbursements or any provision of in-kind benefits to, Employee, as specified under this Agreement, that are not exempt from subject to Section 409A, such reimbursement of expenses or provision of in-kind benefits shall be subject to including, where applicable, the following conditions: requirements that (1i) the amount of expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable during a calendar year shall may not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable calendar year; , (2ii) the reimbursement of an eligible expense shall will be made no later than on or before the end last day of the calendar year after following the year in which such the expense was incurred; is incurred and (3iii) the right to reimbursement or in-kind benefits shall is not be subject to set off or liquidation or exchange for another any other benefit. Notwithstanding anything herein to the contrary, the Company shall have no liability to Executive or to any other person if the payments and benefits provided in this Agreement that are intended to be exempt from or compliant with Section 409A are not so exempt or compliant.

409A Compliance. With the exception of the terms of any outstanding long term incentive awardsThis Agreement is intended to comply with or be exempt from Code §409A, the parties agree that the payments and benefits under Section II of this Agreement willaccordingly, to the maximum extent possiblepermitted, not this Agreement shall be subject interpreted to be in compliance with or exempt from Code §409A. If the 6 month delay in Executive is a specified employee within the meaning of that term under Code §409A, then with regard to any payment described in Section that is considered non-qualified deferred compensation under Code §409A and payable on account of a separation from service, such payment shall be made on the date which is the earlier of (i) the expiration of the Internal Revenue Code six (6)-month period measured from the date of such separation from service, and (ii) the Treasury Regulations thereunder (“Section 409A”) due to application date of exemptions under Section 409A, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) the Executive’s death (the “two times, two year ruleDelay Period”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, ) to the extent necessary required under Code §409A. Upon the expiration of the Delay Period, all payments delayed shall be paid to comply the Executive in a lump sum, and all remaining payments due under this Agreement shall be paid or provided for in accordance with Section the normal payment dates specified herein. To the extent any reimbursements or in-kind benefits under this Agreement constitute non-qualified deferred compensation for purposes of Code §409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to such reimbursement or in kind benefits is not subject to a 6liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-month delay kind benefits provided in Section 409A. any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Section 409Athe Code §409A, the Executive’s right to a series of receive any installment payments under payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. With respect to In no event shall any reimbursement of expenses of, or any provision of in-kind benefits to, Employee, as specified payment under this Agreement, Agreement that are not exempt from Section 409A, such reimbursement constitutes non-qualified deferred compensation for purposes of expenses or provision of in-kind benefits shall Code §409A be subject to the following conditions: (1) the expenses eligible for reimbursement offset, counterclaim, or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in recoupment by any other taxable year; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.amount unless otherwise permitted by Code §409A.

409A Compliance. With the exception It is expected, as of the terms of any outstanding long term incentive awards, the parties agree that the payments and benefits under Section II date of this Agreement Agreement, that upon your Separation Date, you will, to the maximum extent possibleat that time, not be subject to the 6 month delay in payment described in have a Separation from Service. For purposes of Section 409A of the Internal Revenue Code and the Treasury Regulations regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) due to application of exemptions ), all payments made under Section 409Athis Agreement, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent necessary to comply with Section 409A, be subject to a 6-month delay provided in Section 409A. For purposes of Section 409Athe your right to a series of receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise), shall be treated as a right to receive a series of separate paymentspayments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. With respect to any reimbursement All of expenses of, or any provision of in-kind benefits to, Employee, as specified the payments under this Agreement, including but not limited to the Cash Severance Benefits and the COBRA Premium Amount, are intended to satisfy the requirements for the exemptions from application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and any ambiguities herein shall be interpreted accordingly. For purposes of compliance with Treasury Regulation Section 1.409A-1(b)(4), any amounts that are payable in reliance on such exemption will be paid, in all cases, not later than the 15th day of the third calendar month following the year in which such amounts are no longer subject to a substantial risk of forfeiture. It is intended that any severance payment and any other benefits provided hereunder that are not exempt from application of Section 409A shall be interpreted and administered so as to comply with the requirements of Code Section 409A to the greatest extent possible, including the requirement that, notwithstanding any provision to the contrary in this Agreement, if you are deemed by the Company at the time of your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and to the extent payments due to you upon a Separation from Service are deemed to be “deferred compensation”, then to the extent delayed commencement of any portion of such payments (or delayed issuance of any shares subject to stock awards that are not themselves exempt from Code Section 409A) is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such reimbursement payments shall not be provided to you (or such shares issued) until the earliest of expenses (i) the expiration of the six-month period measured from the date of your Separation from Service, (ii) the date of your death or provision (iii) such earlier date as permitted under Section 409A without the imposition of in-kind benefits adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be subject paid in a lump sum to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in you, and any other taxable year; (2) the reimbursement of an eligible expense remaining payments due shall be made no paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. For clarity, all of your currently outstanding restricted stock unit award agreements provide that any shares vesting under those agreements shall be issued not later than the end December 31 of the year in which the shares subject thereto are no longer subject to a substantial risk of forfeiture or, if permitted without penalty under Section 409A, the 15th day of the third calendar month after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be shares subject thereto are no longer subject to liquidation or exchange for another benefita substantial risk of forfeiture.

409A Compliance. With the exception The intent of the terms of any outstanding long term incentive awards, the parties agree is that the payments and benefits under Section II of this Agreement willcomply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent possiblepermitted, not be subject to the 6 month delay in payment described in Section 409A of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”) due to application of exemptions under Section 409A, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent necessary to comply with Section 409A, be subject to a 6-month delay provided in Section 409A. For purposes of Section 409Athe right to a series of installment payments under this Agreement shall be treated as a right interpreted to a series of separate paymentsbe in compliance therewith. With respect to any reimbursement of expenses of, or To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on the Employee by Code Section 409A or damages for failing to comply with Code Section 409A. To the extent that reimbursements or other in-kind benefits to, Employee, as specified under this Agreement, that are not exempt from Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, such reimbursement of (i) all expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year; (2) the reimbursement of an eligible expense reimbursements hereunder shall be made no later than on or prior to the end last day of the taxable year after following the taxable year in which such expense was incurred; and expenses were incurred by the Employee, (3ii) the any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit., and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year

409A Compliance. With the exception of the terms of any outstanding long term incentive awards, the The parties agree that the payments and benefits in (a), (b), and (d) under Section II of “Consideration” in this Agreement will, to the maximum extent possible, will not be subject to the 6 month delay in payment described in Section 409A of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”) due to application of the exemptions under Section 409A, including without limitation in Treasury Regulations Regulation Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”), Treasury Regulation Section 1.409A-1(b)(4) (the “short-term deferral rule”), and Treasury Regulation Section 1.409A-1(b)(9)(v)(B) (medical benefits). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent necessary to comply with Section 409A, be subject to a 6-month delay provided in Section 409A. For purposes of Section 409Athe 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. “Termination of employment,” or words of similar import, as used in this Agreement means, for purposes of any payments under this Agreement that are payments of deferred compensation subject to Section 409A, Xxxxxxx’ “separation from service” as defined in Section 409A. With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, EmployeeXxxxxxx, as specified under this Agreement, that are not exempt from Section 409A, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

409A Compliance. With the exception of the terms of This Agreement shall be interpreted to avoid any outstanding long term incentive awards, the parties agree that the payments and benefits penalty sanctions under Section II of this Agreement will, to the maximum extent possible, not be subject to the 6 month delay in payment described in Section section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations thereunder regulations promulgated hereunder (“Section 409A”) due the Code). Compensation payments under this Agreement are intended to application of exemptions be made within the short-term deferral exception under Section 409ATreas. Reg. section 1.409A-1(b)(4), including without limitation Treasury Regulations Section and the separation pay exception under Treas. Reg. section 1.409A-1(b)(9)(iii) (the “two times, two year rule”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent necessary to comply with Section 409A, be subject to a 6-month delay provided in Section 409A. possible. For purposes of Section 409Athe section 409A of the Code, all payments to be made upon termination of employment under this Agreement may only be made upon Employee’s separation from service within the meaning of such term under section 409A of the Code, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall is to be treated as a right to a series of separate payments. With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, In no event shall Employee, as specified under this Agreementdirectly or indirectly, that are not exempt from Section 409A, such reimbursement designate the calendar year of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of payment. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in one taxable accordance with the requirements of section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year shall may not affect the expenses eligible for reimbursement reimbursement, or the amount of in-kind benefits provided to be provided, in any other taxable calendar year; , (2iii) the reimbursement of an eligible expense shall will be made no later than on or before the end last day of the calendar year after following the year in which such the expense was is incurred; , and (3iv) the right to reimbursement or in-kind benefits shall is not be subject to liquidation or exchange for another benefit.

409A Compliance. With the exception of the terms of any outstanding long term incentive awards, the The parties agree that the payments and benefits under Section II of “Consideration” in this Agreement will, to the maximum extent possible, will not be subject to the 6 month delay in payment described in Section 409A of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”) due to application of exemptions under Section 409A, including without limitation Treasury Regulations Regulation Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”) and Treasury Regulation Section 1.409A-1(b)(4) (the “short-term deferral rule”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent necessary to comply with Section 409A, be subject to a 6-month delay provided in Section 409A. For purposes of Section 409Athe 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, EmployeeHayden, as specified under this Agreement, that are not exempt from Section 409A, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.