Common use of Applicability of Section 409A of the Code Clause in Contracts

Applicability of Section 409A of the Code. Notwithstanding anything herein to the contrary, the parties intend that this Agreement, to the maximum extent possible, be administered, interpreted and construed in a manner consistent with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations and Internal Revenue Service guidance thereunder (collectively, “Section 409A”). Neither party individually or in combination may accelerate, offset or assign any payment subject to Section 409A, except in compliance with Section 409A. No amount shall be paid prior to the earliest date on which it is permitted to be paid under Section 409A and Executive shall have no discretion with respect to the timing of payments except as permitted under Section 409A. Notwithstanding anything herein to the contrary, to the extent necessary to avoid the imposition of tax on Executive under Section 409A, any payments that are otherwise payable to Executive within the first six (6) months following the effective date of termination of employment shall be suspended and paid as soon as practicable following the end of the six-month period following such effective date if, immediately prior to Executive’s termination of employment, Executive is determined to be a “specified employee” (within the meaning of Section 409A(a)(2)(B)(i)) of the Company (or any related “service recipient” within the meaning of Section 409A). Any payments suspended by operation of the foregoing sentence shall be paid as a lump sum within thirty (30) days following the end of such six-month period. Payments (or portions thereof) that would be paid latest in time during the six-month period will be suspended first. For purposes of this Agreement, the phrases “termination of employment,” “termination,” “terminated,” and similar terminology all refer to a “separation from service” within the meaning of Section 409A. Each payment and each installment of any severance payments provided for under this Agreement shall be treated as a separate payment for purposes of application of Section 409A. All expense reimbursement or in-kind benefits subject to Section 409A which are provided under this Agreement or, unless otherwise specified in writing, under any Company program or policy shall be subject to the following rules: (i) any such expense reimbursement shall be made by the Company no later than the last day of the taxable year following the taxable year in which such expense was incurred by Executive, (ii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) the amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year; provided, that the foregoing clause shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Executive by Section 409A or damages for failing to comply with Section 409A.

Applicability of Section 409A of the Code. Notwithstanding anything herein to (a) To the contraryextent applicable, the parties intend it is intended that this Agreement, to Agreement and any payment made hereunder shall comply with the maximum extent possible, be administered, interpreted and construed in a manner consistent with requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury Regulations and or the Internal Revenue Service guidance thereunder (collectively, “Code Section 409A”). Neither party individually Any provision that would cause this Agreement or in combination may accelerate, offset or assign any payment subject hereof to fail to satisfy Code Section 409A shall have no force or effect until amended to comply with Code Section 409A, except in compliance with Section 409A. No amount shall which amendment may be paid prior to the earliest date on which it is permitted to be paid under Section 409A and Executive shall have no discretion with respect to the timing of payments except as permitted under Section 409A. Notwithstanding anything herein to the contrary, retroactive to the extent necessary to avoid permitted by Code Section 409A. Without limiting the imposition of tax on Executive under Section 409A, any payments that are otherwise payable to Executive within the first six (6) months following the effective date of termination of employment shall be suspended and paid as soon as practicable following the end generality of the six-month period following such effective date ifforegoing: (i) for all purposes under this Agreement, immediately prior reference to Executive’s “termination of employment” (and corollary terms) with the Company shall be construed to refer to Executive’s “separation from service” (as determined under Treasury Regulation Section 1.409A-1(h), as uniformly applied by the Company) with the Company; and (ii) to the extent that any reimbursement, fringe benefit or other similar plan or arrangement in which Executive is determined to be participates during the Term of Employment or thereafter provides for a “specified employee” (within the meaning deferral of Section 409A(a)(2)(B)(i)) of the Company (or any related “service recipientcompensation” within the meaning of Code Section 409A). Any payments suspended by operation of the foregoing sentence shall be paid as a lump sum within thirty (30) days following the end of such six-month period. Payments (or portions thereof) that would be paid latest in time during the six-month period will be suspended first. For purposes of this Agreement, the phrases “termination of employment,” “termination,” “terminated,” and similar terminology all refer to a “separation from service” within the meaning of Section 409A. Each payment and each installment of any severance payments provided for under this Agreement shall be treated as a separate payment for purposes of application of Section 409A. All expense reimbursement or in-kind benefits subject to Section 409A which are provided under this Agreement or, unless otherwise specified in writing, under any Company program or policy shall be subject to the following rules: (i) any such expense reimbursement shall be made by the Company no later than the last day of the taxable year following the taxable year in which such expense was incurred by Executive, (iix) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iiiy) the amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable payment under such plan or arrangement in one calendar year shall may not affect the expenses amount eligible for reimbursement or in-kind benefits payment in any other calendar year, and (z) subject to be any shorter time periods provided in any other taxable year; providedexpense reimbursement policy of the Company, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred. In addition, whenever a provision under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company. (b) Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the foregoing clause provision of any benefit that is specified as subject to this section, such payment or benefit shall not be violated with regard made or provided (subject to expenses reimbursed under any arrangement covered by Section 105(bthe last sentence of this section 15(b)) prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service” (as such term is defined under Code solely because Section 409A), and (ii) the date of Executive’s death (the “Delay Period”). All payments and benefits delayed pursuant to this section 15(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such expenses are subject to a limit related delay) shall be paid or reimbursed to the period Executive in a lump sum on the arrangement is first business day following the expiration of the Delay Period, and any remaining payments and benefits due under this Agreement shall be paid or provided in effect. In no event whatsoever shall accordance with the Company be liable normal payment dates specified for any additional tax, interest or penalty that may be imposed on Executive by Section 409A or damages for failing to comply with Section 409A.them herein.

Applicability of Section 409A of the Code. Notwithstanding anything herein to (a) To the contraryextent applicable, the parties intend it is intended that this Agreement, to Agreement and any payment made hereunder shall comply with the maximum extent possible, be administered, interpreted and construed in a manner consistent with requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and any related regulations or other guidance promulgated with respect to such Section by the U.S. Department of the Treasury Regulations and or the Internal Revenue Service guidance thereunder (collectively, “Code Section 409A”). Neither party individually Any provision that would cause this Agreement or in combination may accelerate, offset or assign any payment subject hereof to fail to satisfy Code Section 409A shall have no force or effect until amended to comply with Code Section 409A, except in compliance with Section 409A. No amount shall which amendment may be paid prior to the earliest date on which it is permitted to be paid under Section 409A and Executive shall have no discretion with respect to the timing of payments except as permitted under Section 409A. Notwithstanding anything herein to the contrary, retroactive to the extent necessary to avoid permitted by Code Section 409A. Without limiting the imposition of tax on Executive under Section 409A, any payments that are otherwise payable to Executive within the first six (6) months following the effective date of termination of employment shall be suspended and paid as soon as practicable following the end generality of the six-month period following such effective date ifforegoing: (i) for all purposes under this Agreement, immediately prior reference to Executive’s “termination of employment” (and corollary terms) with the Company shall be construed to refer to Executive’s “separation from service” (as determined under Treasury Regulation Section 1.409A-1(h), as uniformly applied by the Company) with the Company; and (ii) to the extent that any reimbursement, fringe benefit or other similar plan or arrangement in which Executive is determined to be participates during the Term of Employment or thereafter provides for a “specified employee” (within the meaning deferral of Section 409A(a)(2)(B)(i)) of the Company (or any related “service recipientcompensation” within the meaning of Code Section 409A). Any payments suspended by operation of the foregoing sentence shall be paid as a lump sum within thirty (30) days following the end of such six-month period. Payments (or portions thereof) that would be paid latest in time during the six-month period will be suspended first. For purposes of this Agreement, the phrases “termination of employment,” “termination,” “terminated,” and similar terminology all refer to a “separation from service” within the meaning of Section 409A. Each payment and each installment of any severance payments provided for under this Agreement shall be treated as a separate payment for purposes of application of Section 409A. All expense reimbursement or in-kind benefits subject to Section 409A which are provided under this Agreement or, unless otherwise specified in writing, under any Company program or policy shall be subject to the following rules: (i) any such expense reimbursement shall be made by the Company no later than the last day of the taxable year following the taxable year in which such expense was incurred by Executive, (iix) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iiiy) the amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable payment under such plan or arrangement in one calendar year shall may not affect the expenses amount eligible for reimbursement or in-kind benefits payment in any other calendar year, and (z) subject to be any shorter time periods provided in any other taxable year; providedexpense reimbursement policy of the Company, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred. In addition, whenever a provision under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company. (b) Notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the foregoing clause provision of any benefit that is specified as subject to this section, such payment or benefit shall not be violated with regard made or provided (subject to expenses reimbursed under any arrangement covered by Section 105(bthe last sentence of this section 14(b)) prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Executive’s “separation from service” (as such term is defined under Code solely because Section 409A), and (ii) the date of Executive’s death (the “Delay Period”). All payments and benefits delayed pursuant to this section 14(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such expenses are subject to a limit related delay) shall be paid or reimbursed to the period Executive in a lump sum on the arrangement is first business day following the expiration of the Delay Period, and any remaining payments and benefits due under this Agreement shall be paid or provided in effect. In no event whatsoever shall accordance with the Company be liable normal payment dates specified for any additional tax, interest or penalty that may be imposed on Executive by Section 409A or damages for failing to comply with Section 409A.them herein.

Applicability of Section 409A of the Code. It is intended that this Agreement comply with section 409A of the Code and the Treasury Regulations and IRS guidance thereunder (collectively referred to as “Section 409A”). Notwithstanding anything herein to the contrary, the parties intend that this AgreementAgreement shall, to the maximum extent possible, be administered, interpreted and construed in a manner consistent with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations and Internal Revenue Service guidance thereunder (collectively, “Section 409A”). Neither party individually or in combination may accelerate, offset or assign any payment subject to Section 409A, except in compliance with Section 409A. No amount shall be paid prior to the earliest date on which it is permitted to be paid under Section 409A and Executive shall have no discretion with respect to the timing of payments except as permitted under Section 409A. Notwithstanding anything herein to the contrary, to To the extent necessary to avoid that any reimbursement, fringe benefit or other, similar plan or arrangement in which the imposition of tax on Executive under Section 409A, any payments that are otherwise payable to Executive within participates during the first six (6) months following the effective date of termination of employment shall be suspended and paid as soon as practicable following the end of the six-month period following such effective date if, immediately prior to Executive’s termination of employment, Executive is determined to be Term or thereafter provides for a “specified employee” (within the meaning deferral of Section 409A(a)(2)(B)(i)) of the Company (or any related “service recipientcompensation” within the meaning of Section 409A). Any payments suspended by operation 409A of the foregoing sentence shall be paid as a lump sum within thirty Code, (30a) days following the end amount of such six-month period. Payments (or portions thereof) that would be paid latest in time during the six-month period will be suspended first. For purposes of this Agreement, the phrases “termination of employment,” “termination,” “terminated,” and similar terminology all refer to a “separation from service” within the meaning of Section 409A. Each payment and each installment of any severance payments expenses eligible for reimbursement provided for under this Agreement shall be treated as a separate payment for purposes of application of Section 409A. All expense reimbursement or in-kind benefits subject to Section 409A which are provided under this Agreement or, unless otherwise specified in writing, under any Company program or policy shall be subject to the following rules: (i) Executive during any such expense reimbursement shall be made by the Company no later than the last day of the taxable calendar year following the taxable year in which such expense was incurred by Executive, (ii) the right to reimbursement or in-kind benefits shall will not be subject to liquidation or exchange for another benefit, and (iii) affect the amount of expenses eligible for reimbursement or in-kind benefits provided during to the Executive in any taxable other calendar year, (b) the reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year shall not affect following the expenses eligible for calendar year in which the applicable expense is incurred, (c) the right to payment or reimbursement or in-kind benefits to hereunder may not be provided in liquidated or exchanged for any other taxable year; provided, that benefit and (d) the foregoing clause reimbursements shall not be violated with regard made pursuant to expenses reimbursed under any arrangement covered by Section 105(b) objectively determinable and nondiscretionary Company policies and procedures regarding such reimbursement of the Code solely because such expenses are subject to a limit related expenses. If and to the period the arrangement is in effect. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Executive by Section 409A or damages for failing extent required to comply with Section 409A.409A, no payment or benefit required to be paid under this Agreement on account of termination of the Executive’s employment shall be made unless and until the Executive incurs a “separation from service” within the meaning of Section 409A. If any paragraph of this Agreement provides for payment within a time period, the determination of when such payment shall be made within such time period shall be solely in the discretion of the Company.