Common use of Special 409A Provisions Clause in Contracts

Special 409A Provisions. Notwithstanding any provision of this Agreement to the contrary, if Executive is a specified employee within the meaning of Section 409A, as determined by the Board of Directors of the Company in accordance with Section 409A, any amounts payable under this Agreement or any other payments to which Executive may be entitled on account of a “separation from service” within the meaning of Section 409A which constitute “deferred compensation” within the meaning of Section 409A and which are otherwise scheduled to be paid during the first six months following Executive’s termination of employment (other than any payments that are permitted under Section 409A to be paid within six months following termination of employment of a specified employee) shall be suspended until the six-month anniversary of Executive’s termination of employment, at which time all payments that were suspended shall be paid to Executive in a lump sum, together with interest on each suspended payment at the prime rate (as reported in the Wall Street Journal) from the date of suspension to the date of payment. For purposes of Section 409A, each payment under this Section 7 will be treated as a separate and distinct payment and any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. Payment or reimbursement of each of the business expenses and tax gross-up payments called for by this Agreement with respect to any calendar year shall not affect the amount eligible for payment or reimbursement in any other calendar year, and such payments and reimbursements may not be exchanged for cash or another benefit. If any amounts are due to be paid to Executive within a specified period, the date of payment within such period shall be in the sole discretion of the Company.

Special 409A Provisions. Notwithstanding any provision of this Agreement to the contrary, if Executive is a specified employee within the meaning of Section 409A, as determined by the Board of Directors of the Company in accordance with Section 409A, any amounts payable under this Agreement or any other payments to which Executive may be entitled on account of a “separation from service” within the meaning of Section 409A which constitute “deferred compensation” within the meaning of Section 409A and which are otherwise scheduled to be paid during the first six months following Executive’s termination of employment (other than any payments that are permitted under Section 409A to be paid within six months following termination of employment of a specified employee) shall be suspended until the six-month anniversary of Executive’s termination of employment, at which time all payments that were suspended shall be paid to Executive in a lump sum, together with interest on each suspended payment at the prime rate (as reported in the Wall Street Journal) from the date of suspension to the date of payment. For purposes of Section 409A, each payment under this Section 7 will be treated as a separate and distinct payment and any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct paymentspayment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. Payment or reimbursement of each of the business expenses and tax gross-up payments called for by this Agreement with respect to any calendar year shall not affect the amount eligible for payment or reimbursement in any other calendar year, and such payments and reimbursements may not be exchanged for cash or another benefit. If any amounts are due to be paid to Executive within a specified period, the date of payment within such period shall be in the sole discretion of the Company.

Special 409A Provisions. Notwithstanding any provision This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be interpreted and construed consistently with such intent. The payments to you pursuant to this Agreement are also intended to be exempt from Section 409A of the Code to the contrary, if Executive is a specified employee within maximum extent possible. To the meaning of Section 409A, as determined by the Board of Directors of the Company in accordance with Section 409A, extent any amounts payable under this Agreement or any other payments are payable by reference to which Executive may your “termination of employment,” such term shall be entitled on account of a deemed to refer to your “separation from service,” within the meaning of Section 409A which constitute of the Code. Notwithstanding any other provision in this Agreement, if you are a “specified employee,” as defined in Section 409A of the Code, as of the date of your separation from service, then to the extent any amount payable under this Agreement (i) constitutes the payment of nonqualified deferred compensation” , within the meaning of Section 409A of the Code, (ii) is payable upon your separation from service and which are otherwise scheduled (iii) under the terms of this Agreement would be payable prior to be paid during the first six months following Executive’s termination of employment (other than any payments that are permitted under Section 409A to be paid within six months following termination of employment of a specified employee) shall be suspended until the six-month anniversary of Executive’s termination of employmentyour separation from service, at which time all payments that were suspended such payment shall be paid delayed until the earlier to Executive in a lump sum, together with interest on each suspended payment at occur of (a) the prime rate six-month anniversary of the separation from service or (as reported in the Wall Street Journalb) from the date of suspension your death. Any reimbursement or advancement payable to the date of payment. For purposes of Section 409A, each payment under this Section 7 will be treated as a separate and distinct payment and any installment payment you pursuant to this Agreement shall be treated conditioned on the submission by you of all expense reports reasonably required by the Company under any applicable expense reimbursement policy, and shall be paid to you as a right to receive a series soon as administratively possible following receipt of separate and distinct payments. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for such expense reports, but in no event later than the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. Payment or reimbursement of each last day of the business calendar year following the calendar year in which you incurred the reimbursable expense. Any amount of expenses and tax grosseligible for reimbursement, or in-up payments called for by this Agreement with respect to any kind benefit provided, during a calendar year shall not affect the amount of expenses eligible for payment reimbursement, or reimbursement in in-kind benefit to be provided, during any other calendar year, and such payments and reimbursements may . The right to any reimbursement or in-kind benefit pursuant to this Agreement shall not be exchanged subject to liquidation or exchange for cash or another any other benefit. If any amounts are due to be paid to Executive within a specified period, the date of payment within such period shall be in the sole discretion of the Company.

Special 409A Provisions. Notwithstanding any provision the provisions of this Agreement to the contrarySection 8 or 11, if Executive is a specified employee within the meaning of Section 409A, as determined by the Board of Directors of the Company in accordance with Section 409Athe election made by the Company for determining specified employees, any amounts payable under this Agreement or any other payments to which Executive may be entitled on account of a “separation from service” within the meaning of Section 409A which constitute “deferred compensation” within the meaning of Section 409A and which are otherwise scheduled to be paid during the first six months following Executive’s termination of employment (other than any payments that are permitted under Section 409A to be paid within six months following termination of employment of a specified employee) shall be suspended until the six-month anniversary of Executive’s termination of employmentemployment (or the Executive’s death if sooner), at which time all payments that were suspended shall be paid to Executive (or his estate) in a lump sum, together with interest on each suspended payment at the prime rate (as reported in the Wall Street Journal) from the date of suspension to the date of payment. For purposes of Section 409A, each payment under this Section 7 8 (and each other severance plan payment) will be treated as a separate and distinct payment and any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct paymentspayment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. Payment or reimbursement of each of the business expenses and tax gross-up payments called for by this Agreement (including those under Sections 7, 8, and 11) with respect to any calendar year shall not affect the amount eligible for payment or reimbursement in any other calendar year, and such payments and reimbursements may not be exchanged for cash or another benefit. If any amounts are due to be paid to Executive within a specified period, the date of payment within such period shall be in the sole discretion of the Company.