Common use of 409A Compliance Clause in Contracts

409A Compliance. (a) This Agreement is intended to comply with the requirements of Section 409A. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.

409A Compliance. (a) This Agreement It is intended to comply with the requirements intent of Section 409A. To the extent parties that any provision in this Agreement is ambiguous be administered so as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision of the Internal Revenue Code and all applicable regulations. The parties intend that any payment due hereunder shall be read, delayed or shall be modified (with adjusted as deemed reasonably necessary by counsel for the mutual consent Company in order to avoid 409A penalties. Without limiting the generality of the partiesforegoing and notwithstanding any provisions in this Agreement to the contrary, which consent shall not if any portion of the payments or benefits to be unreasonably withheld), as the case may be, in such a manner so that all payments due received by Executive under this Agreement shall comply with would be considered deferred compensation under Section 409A. 409A, then the following provisions will apply to the relevant portion: (a) For purposes of this Agreement, no payment that would otherwise be made and no benefit that would otherwise be provided upon a termination of employment will be made or provided unless and until such termination of employment is also a “Separation From Service” (as determined in accordance with Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate 409A of the calendar year of payment.Code); (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) With respect to any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the under this Agreement, such expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made reimbursed by the Company within sixty (60) calendar days following the date on or before which the last day Company receives the applicable invoice from Executive but in no event later than December 31 of the calendar year following the year in which Executive incurs the expense is incurredrelated expense; (c) In no event will the reimbursements or in-kind benefits to be provided by the Company in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, and (iv) the nor will Executive’s right to reimbursement is not or in-kind benefits be subject to liquidation or exchange for another benefit.; (cd) Executive further acknowledges that any tax liability incurred by Executive Each payment under Section 409A of the Code is solely the responsibility of Executivethis Agreement will be considered a “separate payment.”

409A Compliance. (a) This Agreement is intended to comply with With the requirements exception of the terms of any outstanding long term incentive awards, the parties agree that the payments and benefits under Section 409A. To the extent that any provision in II of this Agreement is ambiguous as will, to its compliance with the maximum extent possible, not be subject to the 6 month delay in payment described in Section 409A or of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”) due to application of exemptions under Section 409A, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”). However, Employee agrees that if Employee is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent any provision in this Agreement must be modified necessary to comply with Section 409A (including409A, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, subject to a 6-month delay provided in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section 409A, each payment made 409Athe right to a series of installment payments under this Agreement shall be treated as a right to a series of separate paymentpayments. In no event may ExecutiveWith respect to any reimbursement of expenses of, directly or indirectlyany provision of in-kind benefits to, designate the calendar year of payment. (b) All reimbursements provided Employee, as specified under this Agreement shall be made or provided in accordance with the requirements of Agreement, that are not exempt from Section 409A, including, where applicable, such reimbursement of expenses or provision of in-kind benefits shall be subject to the requirement that following conditions: (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii1) the amount of expenses eligible for reimbursement during a calendar or the amount of in-kind benefits provided in one taxable year may shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other calendar taxable year, ; (iii2) the reimbursement of an eligible expense will shall be made on or before no later than the last day end of the calendar year following after the year in which the such expense is was incurred, ; and (iv3) the right to reimbursement is or in-kind benefits shall not be subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.

409A Compliance. ​ (a) This Agreement is intended to comply with the requirements of Section 409A. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment.. ​ (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit.. ​ (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.. ​

409A Compliance. (a) This Agreement is intended to comply with the requirements of Section 409A. 409A of the Code (“Section 409A ”) and regulations promulgated thereunder. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.

409A Compliance. (a) This Agreement is intended to comply with With the requirements exception of the terms of any outstanding long term incentive awards, the parties agree that the payments and benefits under Section 409A. To the extent that any provision in II of this Agreement is ambiguous as will, to its compliance with the maximum extent possible, not be subject to the 6 month delay in payment described in Section 409A or of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”) due to application of exemptions under Section 409A, including without limitation Treasury Regulations Section 1.409A-1(b)(9)(iii) (the “two times, two year rule”). However, Executive agrees that if Executive is a “specified employee” under Section 409A, then any amounts that are considered deferred compensation subject to Section 409A will, to the extent any provision in this Agreement must be modified necessary to comply with Section 409A (including409A, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, subject to a 6-month delay provided in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section 409A, each payment made 409Athe right to a series of installment payments under this Agreement shall be treated as a right to a series of separate paymentpayments. In no event may With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided as specified under this Agreement shall be made or provided in accordance with the requirements of Agreement, that are not exempt from Section 409A, including, where applicable, such reimbursement of expenses or provision of in-kind benefits shall be subject to the requirement that following conditions: (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii1) the amount of expenses eligible for reimbursement during a calendar or the amount of in-kind benefits provided in one taxable year may shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other calendar taxable year, ; (iii2) the reimbursement of an eligible expense will shall be made on or before no later than the last day end of the calendar year following after the year in which the such expense is was incurred, ; and (iv3) the right to reimbursement is or in-kind benefits shall not be subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.

409A Compliance. (a) This Agreement is intended to comply with the requirements of Section 409A. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.. ​ ​

409A Compliance. (a) This Agreement is intended to comply with the requirements of Section 409A. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may ExecutiveConsultant, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during ExecutiveConsultant’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit. (c) Executive Consultant further acknowledges that any tax liability incurred by Executive Consultant under Section 409A of the Code is solely the responsibility of ExecutiveConsultant.

409A Compliance. (a) This Agreement is intended to comply with the requirements of Section 409A. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c1.409A-3 (c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.

409A Compliance. (a) The following rules shall apply, to the extent necessary, with respect to distribution of the payments and benefits, if any, to be provided to Executive under this Agreement. This Agreement is intended to comply with or be exempt from Section 409A of the requirements of Code (“Section 409A. To 409A”) and the extent that Parties hereto agree to interpret, apply and administer this Agreement in the least restrictive manner necessary to comply therewith and without resulting in any provision increase in the amounts owed hereunder by the Company. Subject to the provisions in this Agreement is ambiguous as Section 5, the severance payments and benefits pursuant to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes begin only upon the date of Section 409A, Executive’s “separation from service”. It is intended that each payment made installment of the severance payments and benefits provided under this Agreement Agreement, if any, shall be treated as a separate “payment. In no event may Executive, directly or indirectly, designate the calendar year ” for purposes of payment. (b) Section 409A. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirement requirements that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iiiii) 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, incurred and (iviii) the right to reimbursement is not subject to set off or liquidation or exchange for another any other benefit. (c) . Notwithstanding anything herein to the contrary, the Company shall have no liability to Executive further acknowledges or to any other person if the payments and benefits provided in this Agreement that any tax liability incurred by Executive under are intended to be exempt from or compliant with Section 409A of the Code is solely the responsibility of Executiveare not so exempt or compliant.

409A Compliance. (a) This Agreement is intended to comply with the requirements of Section 409A. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.

409A Compliance. (a) The following rules shall apply, to the extent necessary, with respect to distribution of the payments and benefits, if any, to be provided to Executive under this Agreement. This Agreement is intended to comply with or be exempt from Section 409A of the requirements Code (“Section 409A”) and the Parties hereto agree to interpret, apply and administer this Agreement in the least restrictive manner necessary to comply therewith and without resulting in any increase in the amounts owed hereunder by the Company. The severance payments and benefits pursuant to this Agreement shall begin only upon the date of Executive’s “separation from service” for purposes of Section 409A. To the extent It is intended that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent each installment of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all severance payments due and benefits provided under this Agreement shall comply with Section 409A. For purposes of Section 409AAgreement, each payment made under this Agreement if any, shall be treated as a separate “payment. In no event may Executive, directly or indirectly, designate the calendar year ” for purposes of payment. (b) Section 409A. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirement requirements that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iiiii) 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, incurred and (iviii) the right to reimbursement is not subject to set off or liquidation or exchange for another any other benefit. (c) . Notwithstanding anything herein to the contrary, the Company shall have no liability to Executive further acknowledges or to any other person if the payments and benefits provided in this Agreement that any tax liability incurred by Executive under are intended to be exempt from or compliant with Section 409A of the Code is solely the responsibility of Executiveare not so exempt or compliant.

409A Compliance. (a) This Agreement is intended to comply with the requirements of Section 409A. 409A of the Code and regulations promulgated thereunder (“Section 409A”). To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.

409A Compliance. (a) This Agreement is intended to comply with the requirements of Section 409A. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall be exempt from or comply with Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.

409A Compliance. (a) This Agreement is intended to comply with the requirements of Section 409A. 409A of the Code (“Section 409A”) and regulations promulgated thereunder. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. For purposes of Section section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment. (b) All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement 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 is not subject to liquidation or exchange for another benefit. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.

409A Compliance. (a) This Agreement is shall be interpreted to avoid any penalty sanctions under section 409A of the Internal Revenue Code of 1986, as amended and the regulations promulgated hereunder (the Code). Compensation payments under this Agreement are intended to comply with be made within the requirements of Section 409A. To short-term deferral exception under Treas. Reg. section 1.409A-1(b)(4), and the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or separation pay exception under Treas. Reg. section 1.409A-1(b)(9)(iii) to the extent any provision in this Agreement must be modified to comply with Section possible. For purposes of section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the partiesCode, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due to be made upon termination of employment under this Agreement shall comply with Section 409A. For purposes may only be made upon Employee’s separation from service within the meaning of Section 409Asuch term under section 409A of the Code, each payment made under this Agreement shall be treated as a separate paymentpayment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event may Executiveshall Employee, directly or indirectly, designate the calendar year of payment. (b) . All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during ExecutiveEmployee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement 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. (c) Executive further acknowledges that any tax liability incurred by Executive under Section 409A of the Code is solely the responsibility of Executive.