Common use of Code Section 162(m) Limitation Clause in Contracts

Code Section 162(m) Limitation. Notwithstanding the previous provisions of this Section, during any calendar year with respect to which the Grantee is a Covered Officer (for purposes of Internal Revenue Code (“Code”) Section 162 (m)), if the Grantee otherwise would vest in a number of Performance Shares under this Section, the Grantee instead may vest only with respect to a sufficient number of Performance Shares whose aggregate Fair Market Value on the date such restrictions would, when added to the Grantee’s “applicable employee remuneration” (as defined in Code Section 162(m)) for the applicable calendar year that does not constitute “qualified performance-based compensation” (as defined in Code Section 162(m)), not exceed the aggregate amount of $999,999.00 for the applicable calendar year (the “Limitation”). To the extent the restrictions on any Performance Shares do not lapse due to the application of this Section, the restrictions on such Performance Shares shall lapse on the first to occur of: (i) the last business day of any subsequent calendar year or years to the extent that the Limitation is not exceeded for such year or years; (ii) the date next following the Grantee’s termination of Service for any reason other than for Cause, or (iii) the first business day of the year next following the year with respect to which the Grantee ceases to be a Covered Officer. The Company will make all determinations as to whether the lapse of restrictions on any Performance Shares is delayed in accordance with this Section. Such determinations will be made on a uniform and non-discriminatory basis consistent with the requirements under Code Section 409A.

Code Section 162(m) Limitation. Notwithstanding the previous provisions of this Section, during any calendar year with respect to which the Grantee is a Covered Officer (for purposes of Internal Revenue Code (“Code”) Section 162 (m)), if the Grantee otherwise would vest in a number of Performance Shares under this Section, the Grantee instead may shall vest only with respect to a sufficient number of Performance Shares whose aggregate Fair Market Value on the date such restrictions would, when added to the Grantee’s “applicable employee remuneration” (as defined in Code Section 162(m)) for the applicable calendar year that does not constitute “qualified performance-based compensation” (as defined in Code Section 162(m)), not exceed the aggregate amount of $999,999.00 for the applicable calendar year (the “Limitation”). To the extent the restrictions on any Performance Shares do not lapse due to the application of this Section, the restrictions on such Performance Shares shall lapse on the first to occur of: (i) the last business day of any subsequent calendar year or years to the extent that the Limitation is not exceeded for such year or years; (ii) the date next following the Grantee’s termination of Service for any reason other than for Cause, or (iii) the first business day of the year next following the year with respect to which the Grantee ceases to be a Covered Officer. The Company will make all determinations as to whether the lapse of restrictions on any Performance Shares is delayed in accordance with this Section. Such determinations will be made on a uniform and non-discriminatory basis consistent with the requirements under Code Section 409A..