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

Application of Section 409A of the Code. To the extent applicable, it is intended that this Agreement comply with, or otherwise be exempt from, the provisions of Section 409A of the Code, so as to prevent inclusion in gross income of any amounts payable or benefits provided hereunder in a taxable year that is prior to the taxable year or years in which such amounts or benefits would otherwise actually be distributed, provided or otherwise made available to Executive. This Agreement shall be construed, administered, and governed in a manner consistent with this intent. If and to the extent that any payment or benefit under this Agreement is determined by the Company to constitute “non-qualified deferred compensation” subject to Section 409A of the Code and is payable to Executive by reason of Executive’s termination of employment, then such payment or benefit shall be made or provided to Executive only upon a “separation from service” as defined for purposes of Section 409A of the Code. In no event will the reimbursements or in-kind benefits to be provided pursuant to this Agreement in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor Executive’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. Each payment under this Agreement will be considered a “separate payment” and not one of a series of payments for purposes of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code (as determined by the Company), any payment (or portion thereof) otherwise due Executive during the first six months following Executive’s termination of employment that is not exempt from Section 409A of the Code either as separation pay or as a short term deferral under applicable Treasury regulations will be held until and paid on the day following the expiration of such six-month period. In no event shall the Company be liable for any additional tax, interest or penalties that may be imposed on Executive under Section 409A of the Code or any damages for failing to comply with Section 409A of the Code.

Application of Section 409A of the Code. To the extent applicable, it The Award covered by this Award Agreement is intended that this Agreement comply with, or otherwise to be exempt from, or otherwise comply with the provisions of of, Section 409A of the Code, so as to prevent inclusion in gross income amended, and the regulations and other guidance promulgated thereunder (“Section 409A”). Notwithstanding the foregoing or any other provision of any amounts payable this Award Agreement or benefits provided hereunder in a taxable year that is prior the Plan to the taxable year or years in which such amounts or benefits would otherwise actually be distributedcontrary, provided or otherwise made available if the Restricted Stock Units are subject to Executive. This the provisions of Section 409A (and not exempted therefrom), the provisions of this Award Agreement and the Plan shall be construed, administered, interpreted and governed construed in a manner consistent necessary to comply with this intent. If and Section 409A (or disregarded to the extent that such provision cannot be so administered, interpreted or construed). If any payment payments or benefit under this Agreement is determined by the Company to benefits hereunder constitute “non-qualified conforming “deferred compensation” subject to taxation under Section 409A of 409A, the Code Participant agrees that the Company may, without the Participant’s consent, modify the Award Agreement to the extent and is payable in the manner the Company deems necessary or advisable or take such other action or actions, including an amendment or action with retroactive effect, that the Company deems appropriate in order either to Executive by reason of Executive’s termination of employment, then preclude any such payment or benefit shall be made or provided to Executive only upon a from being deemed “separation from service” as defined for purposes of Section 409A of the Code. In no event will the reimbursements or in-kind benefits to be provided pursuant to this Agreement in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor Executive’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. Each payment under this Agreement will be considered a “separate payment” and not one of a series of payments for purposes of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employeedeferred compensation” within the meaning of Section 409A(a)(2)(B) 409A or to provide such payments or benefits in a manner that complies with the provisions of Section 409A such that they will not be subject to the imposition of taxes and/or interest thereunder. If, at the time of the Code Participant’s separation from service (as determined within the meaning of Section 409A), (A) the Participant shall be a specified employee (within the meaning of Section 409A and using the identification methodology selected by the Company), any payment Company from time to time) and (or portion thereofB) otherwise due Executive during the first six months following Executive’s termination Company shall make a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of employment that Section 409A) the settlement of which is not exempt from required to be delayed pursuant to the six-month delay rule set forth in Section 409A of in order to avoid taxes or penalties under Section 409A, then the Code either as separation pay or as a short term deferral under applicable Treasury regulations will be held until and paid Company shall not settle such amount on the day following the expiration of otherwise scheduled settlement date but shall instead settle it, without interest, within 30 days after such six-month period. Payments with respect to the Restricted Stock Units may only be paid in a manner and upon an event permitted by Section 409A, and each payment under the Restricted Stock Units shall be treated as a separate payment, and the right to a series of installment payments under the Restricted Stock Units shall be treated as a right to a series of separate payments. In no event shall the Participant, directly or indirectly, designate the calendar year of payment. Notwithstanding the foregoing, the Company be liable for any additional taxmakes no representations and/or warranties with respect to compliance with Section 409A, interest or penalties and the Participant recognizes and acknowledges that may be imposed on Executive under Section 409A of could potentially impose upon the Code or any damages Participant certain taxes and/or interest charges for failing to comply with Section 409A of which the CodeParticipant is and shall remain solely responsible.

Application of Section 409A of the Code. To This Agreement shall be interpreted to avoid any penalty sanctions under Section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A of the Code, then such benefit or payment shall be provided in full (to extent applicable, it is intended that this Agreement comply with, or otherwise not paid in part at earlier date) at the earliest time thereafter when such sanctions shall not be exempt from, the provisions imposed. For purposes of Section 409A of the Code, so as all payments to prevent inclusion in gross income be made upon a termination of any amounts payable or benefits provided hereunder in a taxable year that is prior to the taxable year or years in which such amounts or benefits would otherwise actually be distributed, provided or otherwise made available to Executive. This Agreement shall be construed, administered, and governed in a manner consistent with this intent. If and to the extent that any payment or benefit employment under this Agreement is determined by may only be made upon the Company to constitute “non-qualified deferred compensation” subject to Section 409A of the Code and is payable to Executive by reason of Executive’s termination of employment, then such payment or benefit shall be made or provided to Executive only upon a “separation from service” as defined for purposes (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 be treated as a right to a series of separate payments. In no event will shall the reimbursements Executive, directly or in-kind benefits to be provided pursuant to this Agreement in one taxable indirectly, designate the fiscal year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable yearpayment, nor Executive’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. Each payment except as permitted under this Agreement will be considered a “separate payment” and not one of a series of payments for purposes of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, with respect to amounts under this Agreement are nonqualified deferred compensation subject to Section 409A, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. Notwithstanding anything herein to the contrary, if, at the time of the Executive’s termination of employment with the Company, the Company has securities which are publicly traded on an established securities market and the Executive is a “specified employee” (as such term is defined in Section 409A of the Code) and it is necessary to postpone the commencement of any payments or benefits otherwise payable under this Agreement as a result of such termination of employment to prevent any accelerated or additional tax under Section 409A of the Code, then the Company shall postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise paid first within the meaning ‘short-term deferral exception’ under Treas. Reg. §1.409A-1(b)(4), and then under the ‘separation pay exception’ under Treas. Reg. §1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is 6 months following the Executive’s “separation of service” (as such term is defined under code Section 409A(a)(2)(B) 409A of the Code (as determined by Code) with the Company). If any payments are postponed due to such requirements, any payment (or portion thereof) otherwise due such postponed amounts shall be paid in a lump sum to the Executive during on the first payroll date that occurs after the date that is six (6) months following Executive’s termination separation of employment that is not exempt from service with the Company. If the Executive dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of Section 409A of the Code either as separation pay or as a short term deferral under applicable Treasury regulations will shall be held until and paid on to the day following the expiration of such six-month period. In no event shall the Company be liable for any additional tax, interest or penalties that may be imposed on Executive under Section 409A personal representative of the Code Executive’s estate within sixty (60) days after the date of the Executive’s death. 170 All reimbursements and in-kind benefits provided under this Agreement shall be made or any damages for failing to comply provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the Executive’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 may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.

Application of Section 409A of the Code. To the extent applicable, it is intended that this Agreement comply with, or otherwise be exempt from, the provisions of Section 409A of the Code, so as to prevent inclusion in gross income of any amounts payable or benefits provided hereunder in a taxable year that is prior to the taxable year or years in which such amounts or benefits would otherwise actually be distributed, provided or otherwise made available to Executive. This Agreement shall be construed, administered, and governed in a manner consistent with this intent. If and to the extent that any payment or benefit under this Agreement is determined by the Company to constitute “non-qualified deferred compensation” subject to Section 409A of the Code and is payable to Executive by reason of Executive’s termination of employment, then such payment or benefit shall be made or provided to Executive only upon a “separation from service” as defined for purposes of Section 409A of the Code. In no event will the reimbursements or in-kind benefits to be provided pursuant to this Agreement in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor Executive’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. Each payment under this Agreement will be considered a “separate payment” and not one of a series of payments for purposes of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, if Executive all or any portion of the severance payment provided for in Section 3.7 of this Agreement is determined to be “nonqualified deferred compensation” subject to Section 409A of the Code (after taking into account all applicable exemptions) and the Company determines that the Employee is a “specified employee” within the meaning of as defined in Section 409A(a)(2)(B409A(a)(2)(B)(i) of the Code (as determined by and the Company)regulations and other guidance issued thereunder, any then such severance payment (or portion thereof) otherwise due Executive during the first six months following Executive’s termination of employment that is not exempt from subject to Section 409A of and cannot be paid to the Code either as separation pay or as a short term deferral under applicable Treasury regulations will be held until and paid on the day following the expiration of such six-month period. In no event shall the Company be liable for any Employee without incurring additional tax, interest or penalties that may be imposed on Executive under Section 409A shall be paid to the Employee (without interest) on the first day of the Code seventh month following the month in which the Employee’s termination of employment occurs. For purposes of this Section 3.7(f), “termination of service” shall mean the Employee’s “separation from service”, as defined in Section 1.409A-1(h) of the Treasury Regulations, including the default presumptions thereunder. Any reimbursements and in-kind benefits provided under this Agreement shall be made or any damages for failing to comply provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement shall be 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 may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

Application of Section 409A of the Code. To This Agreement shall be interpreted to avoid any penalty sanctions under Section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A of the Code, then such benefit or payment shall be provided in full (to extent applicable, it is intended that this Agreement comply with, or otherwise not paid in part at earlier date) at the earliest time thereafter when such sanctions shall not be exempt from, the provisions imposed. For purposes of Section 409A of the Code, so as all payments to prevent inclusion in gross income be made upon a termination of any amounts payable or benefits provided hereunder in a taxable year that is prior to the taxable year or years in which such amounts or benefits would otherwise actually be distributed, provided or otherwise made available to Executive. This Agreement shall be construed, administered, and governed in a manner consistent with this intent. If and to the extent that any payment or benefit employment under this Agreement is determined by may only be made upon the Company to constitute “non-qualified deferred compensation” subject to Section 409A of the Code and is payable to Executive by reason of Executive’s termination of employment, then such payment or benefit shall be made or provided to Executive only upon a “separation from service” as defined for purposes (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 be treated as a right to a series of separate payments. In no event will shall the reimbursements Executive, directly or in-kind benefits to be provided pursuant to this Agreement in one taxable indirectly, designate the fiscal year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable yearpayment, nor Executive’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. Each payment except as permitted under this Agreement will be considered a “separate payment” and not one of a series of payments for purposes of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, with respect to amounts under this Agreement are nonqualified deferred compensation subject to Section 409A, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. 190 Notwithstanding anything herein to the contrary, if, at the time of the Executive’s termination of employment with the Company, the Company has securities which are publicly traded on an established securities market and the Executive is a “specified employee” (as such term is defined in Section 409A of the Code) and it is necessary to postpone the commencement of any payments or benefits otherwise payable under this Agreement as a result of such termination of employment to prevent any accelerated or additional tax under Section 409A of the Code, then the Company shall postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) that are not otherwise paid first within the meaning ‘short-term deferral exception’ under Treas. Reg. §1.409A-1(b)(4), and then under the ‘separation pay exception’ under Treas. Reg. §1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is 6 months following the Executive’s “separation of service” (as such term is defined under code Section 409A(a)(2)(B) 409A of the Code (as determined by Code) with the Company). If any payments are postponed due to such requirements, any payment (or portion thereof) otherwise due such postponed amounts shall be paid in a lump sum to the Executive during on the first payroll date that occurs after the date that is six (6) months following Executive’s termination separation of employment that is not exempt from service with the Company. If the Executive dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of Section 409A of the Code either as separation pay or as a short term deferral under applicable Treasury regulations will shall be held until and paid on to the day following the expiration of such six-month period. In no event shall the Company be liable for any additional tax, interest or penalties that may be imposed on Executive under Section 409A personal representative of the Code Executive’s estate within sixty (60) days after the date of the Executive’s death. All reimbursements and in-kind benefits provided under this Agreement shall be made or any damages for failing to comply provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the Executive’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 may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.