Common use of 409A Safe Harbor Clause in Contracts

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section 409A, and Executive is a key employee of the Employer, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, on his date of separation from service, the Employer is publicly traded and he met the definition key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section 409A, and Executive is a key employee of the Employer, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, on his date of separation from service, the Employer is publicly traded and he met the definition key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Corporation or Bank be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer Corporation, Bank and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on or account of a separation Separation from serviceService, such payment is subject to the provisions of Section 409A, and Executive is a key employee of the EmployerCorporation or Bank, then payment shall not be made before the date that is six months after the date of separation Separation from service Service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer Corporation or Bank if, on his date of separation from service, the Employer Corporation is publicly traded and he met the definition key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Fxxxxx be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Internal Revenue Code Section section 409A (“Section Code section 409A”) earlier than the earliest permissible date under Section Code section 409A that such amount could be paid without additional taxes or interest being imposed under Section Code section 409A. The Employer Companies and the Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section Code section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section Code section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section Code section 409A. Without limiting the generality of the foregoing, in the event the Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section Code section 409A, and the Executive is a key employee of the EmployerFxxxxx, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, Fxxxxx if on his date of separation from service, the Employer service Fxxxxx is publicly traded and he met the definition key employee found in Code Section section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Xxxxxx be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Internal Revenue Code Section section 409A (“Section Code section 409A”) earlier than the earliest permissible date under Section Code section 409A that such amount could be paid without additional taxes or interest being imposed under Section Code section 409A. The Employer Xxxxxx and the Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section Code section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section Code section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section Code section 409A. Without limiting the generality of the foregoing, in the event the Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section Code section 409A, and the Executive is a key employee of the EmployerXxxxxx, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment period shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of Xxxxxx if on the Employer if, on his Executive’s date of separation from service, the Employer service Xxxxxx is publicly traded and he the Executive met the definition key employee found in Code Section section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Corporation or Bank be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer Bank and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on or account of a separation Separation from serviceService, such payment is subject to the provisions of Section 409A, and Executive is a key employee of the EmployerCorporation or Bank, then payment shall not be made before the date that is six months after the date of separation Separation from service Service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer Corporation or Bank if, on his date of separation from service, the Employer Corporation is publicly traded and he met the definition key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section 409A, and Executive is a key employee of the Employer, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, on his date of separation from service, the Employer is publicly traded and he met the definition key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section 409A, and Executive is a “key employee employee” (as defined in accordance with Section 409A) of the Employer, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, on his date of separation from service, the Employer is publicly traded and he met the definition of key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section 409A, and Executive is a key employee “specified employee” of the EmployerEmployer (as determined in accordance with Section 409A of the Code), then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of Executive’s death). Amounts otherwise payable during such six month payment period shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereofTo the extent any payments under this Agreement are payable in installments, Executive is each installment shall be treated as a key employee of the Employer if, on his date of separation from service, the Employer is publicly traded and he met the definition key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separationseparate payment.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Xxxxxx be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Internal Revenue Code Section section 409A (“Section Code section 409A”) earlier than the earliest permissible date under Section Code section 409A that such amount could be paid without additional taxes or interest being imposed under Section Code section 409A. The Employer Companies and the Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section Code section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section Code section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section Code section 409A. Without limiting the generality of the foregoing, in the event the Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section Code section 409A, and the Executive is a key employee of the EmployerXxxxxx, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, Xxxxxx if on his date of separation from service, the Employer service Xxxxxx is publicly traded and he met the definition key employee found in Code Section section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Company be obligated to commence payment or distribution to the Executive Key Employee of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section section 409A (“Section 409A”) earlier than the earliest permissible date under Section Code section 409A that such amount could be paid without additional taxes or interest being imposed under Section Code section 409A. The Employer Company and Executive the Key Employee agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section Code section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section Code section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section Code section 409A. Without limiting the generality of the foregoing, in the event Executive the Key Employee is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section Code section 409A, and Executive the Key Employee is a “key employee employee” (as defined below) of the EmployerCompany, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of Executivethe Key Employee’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive Key Employee is a “key employee employee” of the Employer if, Company if on his or her date of separation from service, the Employer service Company is publicly traded and he or she met the definition of “key employee employee” found in Code Section section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Xxxxxx be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Internal Revenue Code Section section 409A (“Section Code section 409A”) earlier than the earliest permissible date under Section Code section 409A that such amount could be paid without additional taxes or interest being imposed under Section Code section 409A. The Employer Xxxxxx and the Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section Code section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section Code section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section Code section 409A. Without limiting the generality of the foregoing, in the event the Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section Code section 409A, and the Executive is a key employee of the EmployerXxxxxx, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment period shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, Xxxxxx if on his date of separation from service, the Employer service Xxxxxx is publicly traded and he met the definition key employee found in Code Section section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in (i) If Executive becomes eligible for payments under this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a his “separation from service, such payment is subject to the provisions of Section 409A,” as defined below, and Executive is a key employee “specified employee” within the meaning of Section 409A of the EmployerInternal Revenue Code of 1986, then payment shall not be made before as amended, and the date that is six months after regulations promulgated thereunder (collectively, the date of “Code”) when the separation from service (oroccurs, if earlier than as determined by the end Company, any portion of the six month period, payments that either do not qualify under the date “short-term deferral rule” or exceed two times the lesser of (A) the Executive’s death). Amounts “annualized compensation” (within the meaning of Section 409A of the Code) for the calendar year preceding the Executive’s separation from service, or (B) the maximum amount that may be taken into account under Section 401(a)(17) of the Code for the year in which the Executive’s separation from service occurs and which are not otherwise payable during such six month payment exempt from Section 409A of the Code, shall be accumulated accrued, without interest, and paid in a lump sum on its payment delayed until the first day of the seventh month. For purposes hereof, Executive is a key employee of month following the Employer if, on his date of Executive’s separation from service, or if earlier, the Employer is publicly traded Executive’s death, at which point the accrued amount will be paid in a single, lump sum cash payment. Furthermore, the Company shall not be required to make, and he met the definition key employee found Executive shall not be required to receive, any severance or other payment or benefit under this Agreement at such time as the making of such payment or the provision of such benefit or the receipt thereof shall result in Code a tax to Executive arising under Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as 409A of the last day Code. The preceding provisions, however, shall not be construed as a guarantee by the Company of the calendar year preceding the date of separationany particular tax effect to Executive under this Agreement.

409A Safe Harbor. (a) Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive intend that this Agreement will be administered in accordance with Section 409A. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section 409A, and Executive is a key employee “specified employee” of the EmployerEmployer (as determined in accordance with Section 409A of the Code), then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of Executive’s death). Amounts otherwise payable on an installment basis during such six month payment period, shall be accumulated and paid in a lump sum on the first day of the seventh month, and the balance of any installments shall be payable in accordance with the original schedule. For To the extent any payments under this Agreement are payable in installments, each installment shall be treated as a separate payment for purposes hereof, Executive is a key employee of the Employer if, on his date of separation from service, the Employer is publicly traded and he met the definition key employee found in Code Section 416(i)(1)(A)(iTreasury Regulation § 1.409A-2(b)(2), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation from serviceservice (as defined in accordance with Section 409A), such payment is subject to the provisions of Section 409A, and Executive is a “key employee employee” of the Employer, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, on his her date of separation from service, the Employer is publicly traded and he met the definition of key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Xxxxxx be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section section 409A (“Section Code section 409A”) earlier than the earliest permissible date under Section Code section 409A that such amount could be paid without additional taxes or interest being imposed under Section Code section 409A. The Employer Xxxxxx and the Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section Code section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section Code section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section Code section 409A. Without limiting the generality of the foregoing, in the event the Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section Code section 409A, and the Executive is a key employee of the EmployerXxxxxx, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment period shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, Xxxxxx if on his date of separation from service, the Employer service Xxxxxx is publicly traded and he met the definition key employee found in Code Section section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Fulton be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Internal Revenue Code Section section 409A (“Section Code section 409A”) earlier than the earliest permissible date under Section Code section 409A that such amount could be paid without additional taxes or interest being imposed under Section Code section 409A. The Employer Companies and the Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section Code section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section Code section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section Code section 409A. Without limiting the generality of the foregoing, in the event the Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section Code section 409A, and the Executive is a key employee of the EmployerFulton, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, Fulton if on his date of separation from service, the Employer service Fulton is publicly traded and he met the definition key employee found in Code Section section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation “Separation from serviceService” (as defined herein), such payment is subject to the provisions of Section 409A, and Executive is a key employee of the Employer, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, on his date of separation from service, the Employer is publicly traded and he met the definition key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.seventh

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section 409A, and Executive is a key employee of the Employer, then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of the Executive’s death). Amounts otherwise payable during such six month payment shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereof, Executive is a key employee of the Employer if, on his date of separation from service, the Employer is publicly traded and he met the definition of key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separation.

409A Safe Harbor. Notwithstanding anything in this Agreement to the contrary, in no event shall the Employer Company be obligated to commence payment or distribution to the Executive of any amount that constitutes nonqualified deferred compensation within the meaning of Code Section 409A (“Section 409A”) earlier than the earliest permissible date under Section 409A that such amount could be paid without additional taxes or interest being imposed under Section 409A. The Employer Company and Executive intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The Company and Executive agree that they will execute any and all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the distribution provisions of Section 409A and to cause any and all amounts due under this Agreement, the payment or distribution of which is delayed pursuant to Section 409A, to be paid or distributed in a single sum payment at the earliest permissible date under Section 409A. Without limiting the generality of the foregoing, in the event Executive is to receive a payment of compensation hereunder that is on account of a separation from service, such payment is subject to the provisions of Section 409A, and Executive is a key employee “specified employee” of the EmployerCompany (as determined in accordance with Section 409A of the Code), then payment shall not be made before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of Executive’s death). Amounts otherwise payable during such six month payment period shall be accumulated and paid in a lump sum on the first day of the seventh month. For purposes hereofTo the extent any payments under this Agreement are payable in installments, Executive is each installment shall be treated as a key employee of the Employer if, on his date of separation from service, the Employer is publicly traded and he met the definition key employee found in Code Section 416(i)(1)(A)(i), (ii) or (iii) (disregarding Section 416(i)(5)) as of the last day of the calendar year preceding the date of separationseparate payment.