Common use of Code Section 409A Provisions Clause in Contracts

Code Section 409A Provisions. Notwithstanding any other provision of this Agreement, the following provisions shall apply: (i) Executive shall be considered to have terminated employment with Company only when Executive incurs a “separation from service” with respect to Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to the extent that Executive is a specified employee, as defined in Treasury regulation section 1.409A-1(i), and any stock of Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code shall be made under this Agreement on account of Executive’s separation from service with Company within the meaning of Section 409A(a)(2)(A)(i) of the Code before the date that is the first day of the seventh month beginning after the date of Executive’s separation from service (or, if earlier, the date of death of Executive or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder if, pursuant to Treasury regulation section 1.409A-1(b)(9)(iii), such payment or benefit to be received by Executive hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) Executive’s annualized compensation based upon Executive’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Executive has a separation from service, and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by Executive, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section 1.409A-3(i)(1)(iv): (1) Executive’s eligibility for benefits in one taxable year will not affect Executive’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) Executive’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 whereby the Company may set off any amounts owed by Executive to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Code.

Code Section 409A Provisions. Notwithstanding any other provision of this Agreement, the following provisions shall apply: (i) Executive Employee shall be considered to have terminated employment with Company only when Executive Employee incurs a “separation from service” with respect to the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to the extent that Executive Employee is a specified employee, as defined in Treasury regulation section Treas. Reg. 1.409A-1(i), and any stock of Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code shall be made under this Agreement on account of ExecutiveEmployee’s separation from service with Company within the meaning of Section 409A(a)(2)(A)(i) of the Code before the date that is the first day of the seventh month beginning after the date of ExecutiveEmployee’s separation from service (or, if earlier, the date of death of Executive Employee or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder (such as the Monthly Severance Amount) if, pursuant to Treasury regulation section Treas. Reg. 1.409A-1(b)(9)(iii), such payment or benefit to be received by Executive Employee hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) Executive’s annualized compensation based upon Executivethe Employee’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) salary or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for in the year in which Executive the Employee has a separation from service, service and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by ExecutiveEmployee, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section Treas. Reg. 1.409A-3(i)(1)(iv): (1) ExecutiveEmployee’s eligibility for benefits in one taxable year will not affect ExecutiveEmployee’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) ExecutiveEmployee’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive Employee hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 4.1 whereby the Company may set off any amounts owed by Executive Employee to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Code.

Code Section 409A Provisions. Notwithstanding (a) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Code (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any other provision such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this AgreementAgreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent. In this regard, notwithstanding anything in this Agreement to the contrary, the following provisions shall apply:. (ib) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Executive within a designated period (e.g., within 30 days after the Termination Date) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Section 9(c) below, be determined by the Company, in its sole discretion, and the Executive shall have no right to designate the year in which the payment shall be considered made. (c) Notwithstanding anything in this Agreement or elsewhere to have terminated employment with Company only when the contrary, if the Executive incurs is a Specified Employee on the Date of Termination and, due to the failure of an amount or other benefit that is payable under this Agreement on account of the Executive’s “separation from service,” with respect to Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to the extent that Executive is other than a specified employee, as defined in Treasury regulation section 1.409A-1(i), and any stock of Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code shall be made under this Agreement on account of Executive’s separation from service with as a result of the Executive’s death), to qualify for any of the exemptions from the definition of nonqualified deferred compensation available under section 1.409A-1(b) of the Treasury Regulations, the Company within reasonably determines that such amount or other benefit, constitutes nonqualified deferred compensation that will subject the meaning of Section 409A(a)(2)(A)(iExecutive to “additional tax” under section 409A(a)(1)(B) of the Code before (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the date that is payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month beginning after following the date of Executive’s separation from service (Termination Date or, if earlier, the date of the Executive’s death of Executive or any other date permitted under Section 409A of (the Code“Delayed Payment Date”). The foregoing In the event that this subparagraph (v) requires a delay shall not apply to of any payment or benefit hereunder if, pursuant to Treasury regulation section 1.409A-1(b)(9)(iii)payment, such payment or benefit shall be accumulated and paid in a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the prime lending rate then used by CitiBank, N.A., in New York City and in effect as of the date the payment would otherwise have been provided. (d) In the event the Executive becomes entitled to a Gross-Up Payment under Section 8, such Gross-Up Payment shall in no event be received by Executive hereunder due made later than December 31 of the year following the year during which the related Code section 4999 excise tax is remitted to an involuntary separation from service does not exceed two times the lesser Internal Revenue Service, and all payments to the Accounting Firm pursuant to Section 8 shall be made no later than the end of (1) Executive’s annualized compensation based upon Executive’s annual rate of pay for services during the taxable calendar year of Executive preceding following the calendar year in which the termination related work is performed by the Accounting Firm. (e) The Company and the Executive may agree to take other actions to avoid the imposition of employment occurs (adjusted for any increase during that year that was expected to a 409A Tax at such time and in such manner as permitted under Section 409A. 7. Except as otherwise provided above, the Employment Agreement shall continue indefinitely had no termination of employment occurred) or (2) in full force and effect without alteration as in effect on the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) date hereof. The Employment Agreement, as amended by this Amendment, constitutes the entire agreement of the Code for the year in which Executive has a separation from service, parties and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) supersedes all prior agreements and understandings with respect to the extent that any reimbursement is received or to be received by Executive, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section 1.409A-3(i)(1)(iv): (1) Executive’s eligibility for benefits in one taxable year will not affect Executive’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, subject matter hereof and (3) Executive’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 whereby the Company may set off any amounts owed by Executive to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Codethereof.

Code Section 409A Provisions. Notwithstanding (a) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Code (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any other provision such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this AgreementAgreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent. In this regard, notwithstanding anything in this Agreement to the contrary, the following provisions shall apply. (b) Notwithstanding anything in the Agreement to the contrary: (i) To the extent that any (A) annual incentive compensation becomes payable pursuant to Paragraph 3(b), (B) taxable reimbursement of business expenses becomes payable pursuant to Paragraphs 3(f) or (C) taxable reimbursement of the cost of fringe benefits provided during the Employment Term becomes payable pursuant to Paragraph 3(g), then such incentive compensation or taxable reimbursements shall be paid no later than March 15 of the year following the year in which the incentive compensation was earned or the reimbursed costs were incurred, as the case may be, except to the extent that the Executive elects to defer payment of incentive compensation pursuant to an applicable Section 409A-compliant deferred compensation plan of the Company. (ii) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Executive within a designated period (e.g., within 30 days after the Date of Termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Paragraph 14(b)(v) below, be determined by the Company, in its sole discretion, and the Executive shall have no right to designate the year in which the payment shall be considered made. (iii) In the event, and to have terminated employment the extent that, the provision or reimbursement of costs incurred in connection with any taxable post-termination welfare or fringe benefits provided under this Agreement results in the deferral of compensation within the meaning of Section 409A because the benefits exceed the limits described in section 1.409A-1(b)(9)(v) of the Treasury Regulations for reimbursements and certain other separation payments, then the reimbursement or provision of such benefits shall be subject to the requirements of section 1.409A-3(i)(1)(iv) of the Treasury Regulations, and (A) reimbursements or benefits shall be provided only during the applicable period specified in the Agreement, (B) the amount of expenses eligible for reimbursement or the benefits provided in kind during a particular calendar year shall not affect the expenses eligible for reimbursement or the in kind benefits to be provided in any other calendar year, except that any lifetime caps on reimbursable medical expenses under any applicable Company only when health or medical plan shall continue to apply, (C) the reimbursement of any eligible expense shall be made on or before December 31 of the year following the year in which the expense was incurred and (D) the Executive’s right to reimbursement or the provision of in-kind benefits shall not be subject to liquidation or exchange for another benefit. (iv) In the event the Executive incurs becomes entitled to a Gross-Up Payment under Section 8, such Gross-Up Payment shall in no event be made later than December 31 of the year following the year during which the related Code section 4999 excise tax is remitted to the Internal Revenue Service, and all payments to the Accounting Firm pursuant to Section 8 shall be made no later than the end of the calendar year following the calendar year in which the related work is performed by the Accounting Firm. (v) If the Executive is a Specified Employee on the Date of Termination and, due to the failure of an amount or other benefit that is payable under this Agreement on account of the Executive’s “separation from service,” with respect to Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to other than a separation from service as a result of the extent that Executive is a specified employee, as defined in Treasury regulation section 1.409A-1(iExecutive’s death), and to qualify for any stock of the exemptions from the definition of nonqualified deferred compensation available under section 1.409A-1(b) of the Treasury Regulations, the Company reasonably determines that such amount or of any affiliate is publicly traded on an established securities market or otherwiseother benefit, no payment or benefit constitutes nonqualified deferred compensation that is will subject the Executive to Section 409A “additional tax” under section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be made under this Agreement on account postponed to the first business day of the seventh month following the Date of Termination or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). In the event that this subparagraph (v) requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the prime lending rate then used by CitiBank, N.A., in New York City and in effect as of the date the payment would otherwise have been provided. (vi) For purposes of this Agreement, the (a) term “Specified Employee” shall mean a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, as determined by the Compensation Committee and (b) the Executive’s Date of Termination shall in no event be earlier than the date the Executive has incurred a “separation from service with Company service” within the meaning of Section 409A(a)(2)(A)(i) of the Code before the date that is the first day of the seventh month beginning after the date of Executive’s separation from service (or, if earlier, the date of death of Executive or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder if, pursuant to Treasury regulation section 1.409A-1(b)(9)(iii), such payment or benefit to be received by Executive hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) Executive’s annualized compensation based upon Executive’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Executive has a separation from service, and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by Executive, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section 1.409A-3(i)(1)(iv): (1) Executive’s eligibility for benefits in one taxable year will not affect Executive’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) Executive’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 whereby the Company may set off any amounts owed by Executive to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Code.

Code Section 409A Provisions. Notwithstanding any other provision of to the contrary in this Agreement, the following provisions Company shall apply: delay the commencement of payments or benefits coverage to which Executive would otherwise become entitled under the Agreement in connection with his or her termination of employment until the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s “separation from service” with the Company (as such term is defined in Treasury Regulations issued under Section 409A of the Code) or (ii) the date of the Executive’s death, if and only if the Company in good faith determines that the Executive is a “specified employee” within the meaning of that term under Code Section 409A at the time of such separation from service and that such delayed commencement is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code. Upon the expiration of the applicable Code Section 409A(a)(2) deferral period, all payments and benefits deferred pursuant to this Section 4 (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) shall be considered paid or reimbursed to the Executive in a lump sum, together with interest for the period of delay, compounded monthly, equal to the prime or base lending rate as set forth in the Wall Street Journal and in effect as of the date the payment would otherwise have terminated been provided, and any remaining payments and benefits due under the Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In the event a benefit is to be provided during the applicable Code Section 409A(a)(2) deferral period and the provision of such benefit during that period would violate Section 409A(a)(2) of the Code, then continuation of such benefit during that period shall be conditioned on payment by the Executive of the full premium or other cost of coverage and upon the expiration of such deferral period the Company shall reimburse the Executive for the premiums or other cost of coverage paid by the Executive, which but for this Section 4 would have been paid by the Company. Any such reimbursement shall include interest at the rate set forth above. The Company and Executive may agree to take other actions to avoid the imposition of 409A tax at such time and in such manner as permitted under Section 409A. The provisions of this Agreement which require commencement of payments or benefits coverage subject to Section 409A upon a termination of employment with Company only when shall be interpreted to require that Executive incurs have a “separation from service” with respect to the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to the extent that Executive as such term is a specified employee, as defined in Treasury regulation section 1.409A-1(iRegulations issued under Code Section 409A). In addition, and notwithstanding any stock provision to the contrary in this Agreement, each payment made pursuant to Section 2 shall for all purposes of Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code be treated as a separate payment and not as a single payment. The provisions of this Section 4 are intended to assure that any benefits provided to Executive hereunder shall comply with Code Section 409A and this Agreement shall be made under this Agreement on account of Executive’s separation from service with Company within the meaning of Section 409A(a)(2)(A)(i) of the Code before the date that is the first day of the seventh month beginning after the date of Executive’s separation from service (or, if earlier, the date of death of Executive or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder if, pursuant to Treasury regulation section 1.409A-1(b)(9)(iii), such payment or benefit to be received by Executive hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) Executive’s annualized compensation based upon Executive’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Executive has a separation from service, and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by Executive, such reimbursements shall be administered interpreted consistent with the following additional requirements as set forth such section in Treasury regulation section 1.409A-3(i)(1)(iv): (1) Executive’s eligibility for benefits in one taxable year will not affect Executive’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) Executive’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 whereby the Company may set off any amounts owed by Executive to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Codeall respects.

Code Section 409A Provisions. Notwithstanding (a) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under Section 409A in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any other provision such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this AgreementAgreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent. (b) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Executive within a designated period (e.g., within 30 days after the Date of Termination) and such period begins and ends in different calendar years, the following provisions exact payment date within such range shall apply:be determined by the Company, in its sole discretion, and the Executive shall have no right to designate the year in which the payment shall be made. (ic) Notwithstanding anything in this Agreement or elsewhere to the contrary, if the Executive shall be considered to have terminated employment with is a Specified Employee (as defined below) on the Date of Termination and the Company only when Executive incurs a “reasonably determines that any amount or other benefit payable under this Agreement on account of the Executive’s separation from service” with respect to Company , within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) Code, constitutes nonqualified deferred compensation that will subject the Executive to the extent that Executive is a specified employee, as defined in Treasury regulation section 1.409A-1(i), and any stock of Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to “additional tax” under Section 409A of the Code shall be made under this Agreement on account of Executive’s separation from service with Company within the meaning of Section 409A(a)(2)(A)(i409A(a)(1)(B) of the Code before (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the date that is payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be postponed to the first business day of the seventh month beginning after following the date Date of Executive’s separation from service (Termination or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). The Company and the Executive may agree to take other actions to avoid the imposition of Executive or any other date a 409A Tax at such time and in such manner as permitted under Section 409A 409A. In the event that this Section 10 requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the prime or base lending rate then used by CitiBank, N.A., in New York City and in effect as of the date the payment would otherwise have been provided. (d) For purposes of this Agreement, the term “Specified Employee” shall mean a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code). The foregoing delay shall not apply to any payment or benefit hereunder if, pursuant to Treasury regulation section 1.409A-1(b)(9)(iii), such payment or benefit to be received as determined by Executive hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) ExecutiveCompany’s annualized compensation based upon Executive’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Executive has a separation from service, and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by Executive, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section 1.409A-3(i)(1)(iv): (1) Executive’s eligibility for benefits in one taxable year will not affect Executive’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) Executive’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 whereby the Company may set off any amounts owed by Executive to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the CodeCompensation Committee.

Code Section 409A Provisions. Notwithstanding any other provision of this Agreement, the following provisions shall apply: (i) Executive shall be considered to have terminated employment with Company only when Executive incurs a “separation from service” with respect to Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to the extent that Executive is a specified employee, as defined in Treasury regulation section Treas. Reg. 1.409A-1(i), and any stock of Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code shall be made under this Agreement on account of Executive’s separation from service with Company within the meaning of Section 409A(a)(2)(A)(i) of the Code Code, before the date that is the first day of the seventh month beginning that occurs six months after the date of Executive’s separation from service (or, if earlier, the date of death of Executive or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder if, pursuant to Treasury regulation section Treas. Reg. 1.409A-1(b)(9)(iii), such payment or benefit to be received by Executive hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) Executive’s annualized compensation based upon the Executive’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) salary or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for in the year in which the Executive has a separation from service, service and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by Executive, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section Treas. Reg. 1.409A-3(i)(1)(iv): (1) Executive’s eligibility for benefits in one taxable year will not affect Executive’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) Executive’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 whereby the Company may set off any amounts owed by Executive to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Code.

Code Section 409A Provisions. Notwithstanding any other provision of this Agreement, the following provisions shall apply: (i) Executive Employee shall be considered to have terminated employment with Company only when Executive Employee incurs a “separation from service” with respect to Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to the extent that Executive Employee is a specified employee, as defined in Treasury regulation section Treas. Reg. 1.409A-1(i), and any stock of Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code shall be made under this Agreement on account of ExecutiveEmployee’s separation from service with Company within the meaning of Section 409A(a)(2)(A)(i) of the Code Code, before the date that is the first day of the seventh month beginning that occurs six months after the date of ExecutiveEmployee’s separation from service (or, if earlier, the date of death of Executive Employee or any other date permitted under Section 409A of the Code). The foregoing delay rule shall not apply to any payment or benefit hereunder (such as the Monthly Severance Amount) if, pursuant to Treasury regulation section Treas. Reg. 1.409A-1(b)(9)(iii), such payment or benefit to be received by Executive Employee hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) Executive’s annualized compensation based upon Executivethe Employee’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) salary or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for in the year in which Executive the Employee has a separation from service, service and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by ExecutiveEmployee, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section Treas. Reg. 1.409A-3(i)(1)(iv): (1) ExecutiveEmployee’s eligibility for benefits in one taxable year will not affect ExecutiveEmployee’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) ExecutiveEmployee’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive Employee hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 4.1 whereby the Company may set off any amounts owed by Executive Employee to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Code.

Code Section 409A Provisions. Notwithstanding any other provision of this Agreement, the following provisions shall apply: (i) Executive shall be considered to have terminated employment with Company only when Executive incurs a “separation from service” with respect to the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to the extent that Executive is a specified employee, as defined in Treasury regulation section Treas. Reg. 1.409A-1(i), and any stock of Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code shall be made under this Agreement on account of Executive’s separation from service with Company within the meaning of Section 409A(a)(2)(A)(i) of the Code before the date that is the first day of the seventh month beginning after the date of Executive’s separation from service (or, if earlier, the date of death of Executive or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder (such as the Monthly Severance Amount) if, pursuant to Treasury regulation section Treas. Reg. 1.409A-1(b)(9)(iii), such payment or benefit to be received by Executive hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) Executive’s annualized compensation based upon the Executive’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) salary or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for in the year in which the Executive has a separation from service, service and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by Executive, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section Treas. Reg. 1.409A-3(i)(1)(iv): (1) Executive’s eligibility for benefits in one taxable year will not affect Executive’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) Executive’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 4.1 whereby the Company may set off any amounts owed by Executive to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Code.

Code Section 409A Provisions. Notwithstanding (a) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Code (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any other provision such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this AgreementAgreement is intended to comply with the applicable requirements of Section 409A with respect to such amounts or benefits. This Agreement shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent. In this regard, notwithstanding anything in this Agreement to the contrary, the following provisions shall apply. (b) Notwithstanding anything in the Agreement to the contrary: (i) To the extent that any (A) annual incentive compensation becomes payable pursuant to Paragraph 3(b), (B) taxable reimbursement of business expenses becomes payable pursuant to Paragraphs 3(f) or (C) taxable reimbursement of the cost of fringe benefits provided during the Employment Term becomes payable pursuant to Paragraph 3(g), then such incentive compensation or taxable reimbursements shall be paid no later than March 15 of the year following the year in which the incentive compensation was earned or the reimbursed costs were incurred, as the case may be, except to the extent that the Executive elects to defer payment of incentive compensation pursuant to an applicable Section 409A-compliant deferred compensation plan of the Company. (ii) In each case where this Agreement provides for the payment of an amount that constitutes nonqualified deferred compensation under Section 409A to be made to the Executive within a designated period (e.g., within 30 days after the Date of Termination) and such period begins and ends in different calendar years, the exact payment date within such range shall, subject to Paragraph 14(b)(v) below, be determined by the Company, in its sole discretion, and the Executive shall have no right to designate the year in which the payment shall be considered made. (iii) In the event, and to have terminated employment the extent that, the provision or reimbursement of costs incurred in connection with any taxable post-termination welfare or fringe benefits provided under this Agreement results in the deferral of compensation within the meaning of Section 409A because the benefits exceed the limits described in section 1.409A-1(b)(9)(v) of the Treasury Regulations for reimbursements and certain other separation payments, then the reimbursement or provision of such benefits shall be subject to the requirements of section 1.409A-3(i)(1)(iv) of the Treasury Regulations, and (A) reimbursements or benefits shall be provided only during the applicable period specified in the Agreement, (B) the amount of expenses eligible for reimbursement or the benefits provided in kind during a particular calendar year shall not affect the expenses eligible for reimbursement or the in-kind benefits to be provided in any other calendar year, except that any lifetime caps on reimbursable medical expenses under any applicable Company only when health or medical plan shall continue to apply, (C) the reimbursement of any eligible expense shall be made on or before December 31 of the year following the year in which the expense was incurred and (D) the Executive’s right to reimbursement or the provision of in-kind benefits shall not be subject to liquidation or exchange for another benefit. (iv) In the event the Executive incurs becomes entitled to a Gross-Up Payment under Section 8, such Gross-Up Payment shall in no event be made later than December 31 of the year following the year during which the related Code section 4999 excise tax is remitted to the Internal Revenue Service, and all payments to the Accounting Firm pursuant to Section 8 shall be made no later than the end of the calendar year following the calendar year in which the related work is performed by the Accounting Firm. (v) If the Executive is a Specified Employee on the Date of Termination and, due to the failure of an amount or other benefit that is payable under this Agreement on account of the Executive’s “separation from service,” with respect to Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to other than a separation from service as a result of the extent that Executive is a specified employee, as defined in Treasury regulation section 1.409A-1(iExecutive’s death), and to qualify for any stock of the exemptions from the definition of nonqualified deferred compensation available under section 1.409A-1(b) of the Treasury Regulations, the Company reasonably determines that such amount or of any affiliate is publicly traded on an established securities market or otherwiseother benefit, no payment or benefit constitutes nonqualified deferred compensation that is will subject the Executive to Section 409A “additional tax” under section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit if paid or provided at the time specified in the Agreement, then the payment or provision thereof shall be made under postponed to the first business day of the seventh month following the Date of Termination or, if earlier, the date of the Executive’s death (the “Delayed Payment Date”). In the event that this Agreement subparagraph (v) requires a delay of any payment, such payment shall be accumulated and paid in a single lump sum on account the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the prime lending rate then used by CitiBank, N.A., in New York City and in effect as of the date the payment would otherwise have been provided. (vi) In the event a benefit is to be provided during the period commencing on the Executive’s separation from service with and ending on the Delayed Payment Date and the provision of such benefit during that period would be treated as a payment of nonqualified deferred compensation in violation of Section 409A(a)(2)(B)(i) of the Code, then the Company may condition the continuation of such benefit during that period on payment by the Executive of the full cost of such benefit up to the Delayed Payment Date and, on the Delayed Payment Date, the Company shall reimburse the Executive for the cost of such benefit paid by the Executive, which but for this paragraph would have been paid by the Company. (vii) For purposes of this Agreement, the (a) term “Specified Employee” shall mean a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, as determined by the Compensation Committee and (b) the Executive’s Date of Termination shall in no event be earlier than the date the Executive has incurred a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code before the date that is the first day of the seventh month beginning after the date of Executive’s separation from service (or, if earlier, the date of death of Executive or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder if, pursuant to Treasury regulation section 1.409A-1(b)(9)(iii), such payment or benefit to be received by Executive hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) Executive’s annualized compensation based upon Executive’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Executive has a separation from service, and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by Executive, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section 1.409A-3(i)(1)(iv): (1) Executive’s eligibility for benefits in one taxable year will not affect Executive’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) Executive’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 whereby the Company may set off any amounts owed by Executive to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Code.

Code Section 409A Provisions. Notwithstanding any other provision of this Agreement, the following provisions shall apply: (i) Executive shall be considered to have terminated employment with Company only when Executive incurs a “separation from service” with respect to the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; (ii) to the extent that Executive is a specified employee, as defined in Treasury regulation section Treas. Reg. 1.409A-1(i), and any stock of Company or of any affiliate is publicly traded on an established securities market or otherwise, no payment or benefit that is subject to Section 409A of the Code shall be made under this Agreement on account of Executive’s separation from service with Company within the meaning of Section 409A(a)(2)(A)(i) of the Code before the date that is the first day of the seventh month beginning after the date of Executive’s separation from service (or, if earlier, the date of death of Executive or any other date permitted under Section 409A of the Code). The foregoing delay shall not apply to any payment or benefit hereunder (such as the Monthly Severance Amount) if, pursuant to Treasury regulation section Treas. Reg. 1.409A-1(b)(9)(iii), such payment or benefit to be received by Executive hereunder due to an involuntary separation from service does not exceed two times the lesser of (1) Executive’s annualized compensation based upon the Executive’s annual rate of pay for services during the taxable year of Executive preceding the year in which the termination of employment occurs (adjusted for any increase during that year that was expected to continue indefinitely had no termination of employment occurred) salary or (2) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for in the year in which the Executive has a separation from service, service and that is paid no later than the last day of the second year following the year in which the separation from service occurs; (iii) to the extent that any reimbursement is received or to be received by Executive, such reimbursements shall be administered consistent with the following additional requirements as set forth in Treasury regulation section Treas. Reg. 1.409A-3(i)(1)(iv): (1) Executive’s eligibility for benefits in one taxable year will not affect Executive’s eligibility for benefits in any other taxable year, (2) any reimbursement of eligible expenses will be made on or before the last day of the taxable year following the taxable year in which the expense was incurred, and (3) Executive’s right to benefits is not subject to liquidation or exchange for another benefit; and (iv) to the extent that any payment or benefit to be received by Executive hereunder is to be offset hereunder (by way of example, pursuant to paragraph 5.1 whereby the Company may set off any amounts owed by Executive to Company against any obligation to pay the Monthly Severance Amount), such offset may occur only if it would not result in an impermissible acceleration or deferral under Section 409A of the Code.