Common use of 409A Safe Harbor Clause in Contracts

409A Safe Harbor. (a) If when the Executive’s employment terminates, the Executive is a “specified employee,” as defined in Code Section 409A(a)(2)(B)(i), then despite any provision of this Agreement or other plan or agreement to the contrary, the Executive will not be entitled to the payments until the earliest of: (a) the date that is at least six months after the Executive’s Separation from Service for reasons other than the Executive’s death, (b) the date of the Executive’s death, or (c) any earlier date that does not result in additional tax or interest to the Executive under Code Section 409A. As promptly as possible after the end of the period during which payments are delayed under this provision, the entire amount of the delayed payments shall be paid to the Executive in a single lump sum with any remaining payments to commence in accordance with the terms of this Agreement or other applicable plan or agreement. (b) Any payments made pursuant to this Agreement, to the extent of payments made from the date of termination through March 15th of the calendar year following such date, are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) and thus payable pursuant to the “short-term deferral” rule set forth in Treas. Reg. §1.409A-1(b)(4); to the extent such payments are made following said March 15th, they are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) made upon an involuntary termination from service and payable pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), to the maximum extent permitted by said provision. (c) The parties hereto intend that any and all post-employment compensation under this Agreement satisfy the requirements of Section 409A or an exception or exclusion there from to avoid the imposition of any accelerated or additional taxes pursuant to Section 409A. Any terms not specifically defined shall have the meaning as set forth in Section 409A. (d) Notwithstanding the foregoing, no payment shall be made pursuant to Sections 6 or 7 unless such termination of employment is a “separation of service” as defined in Code Section 409A.

409A Safe Harbor. (ai) If when the Executive’s employment terminatesExecutive becomes eligible for payments under this Agreement on account of his “separation from service,” as defined below, the and Executive is a “specified employee,” within the meaning of Section 409A of the Internal Revenue Code of 1986, as defined in Code Section 409A(a)(2)(B)(i)amended, then despite any provision of this Agreement or other plan or agreement to and the contraryregulations promulgated thereunder (collectively, the Executive will not be entitled to “Code”) when the separation from service occurs, as determined by the Company, any portion of the payments until that either do not qualify under the earliest of: “short-term deferral rule” or exceed two times the lesser of (aA) the date that is at least six months after the Executive’s Separation “annualized compensation” (within the meaning of Section 409A of the Code) for the calendar year preceding the Executive’s separation from Service service, or (B) the maximum amount that may be taken into account under Section 401(a)(17) of the Code for reasons other than the year in which the Executive’s separation from service occurs and which are not otherwise exempt from Section 409A of the Code, shall be accrued, without interest, and its payment delayed until the first day of the seventh month following the Executive’s separation from service, or if earlier, the 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 the 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 a tax to Executive arising under Section 409A of the Code. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Executive under this Agreement. (bii) “Termination of Executive’s employment,” or words of similar import, as used in this Agreement, means for purposes of Section 409A of the Code the date as of which the Company and the Executive reasonably anticipate that no further services will be performed by the Executive and shall be construed as the date that the Executive first incurs a “separation from service” for purposes of Section 409A of the Executive’s deathCode. (iii) For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (iv) This Agreement is intended to comply with, or (c) any earlier date otherwise be exempt from, Section 409A of the Code. This Agreement shall be administered, interpreted and construed in a manner that does not result in additional tax or interest the imposition to the Executive of additional taxes or interest under Code Section 409A. As promptly 409A of the Code. (v) The Company and the Executive agree that they will execute any and all amendments to this Agreement as possible after they mutually agree in good faith may be necessary to ensure compliance with the provisions of Section 409A of the Code. (vi) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, the Executive, as specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (A) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (B) the reimbursement of an eligible expense shall be made no later than the end of the period during year after the year in which payments are delayed under this provision, such expense was incurred; and (C) the entire amount of the delayed payments right to reimbursement or in-kind benefits shall not be paid subject to the Executive in a single lump sum with any remaining payments to commence in accordance with the terms of this Agreement liquidation or other applicable plan or agreementexchange for another benefit. (b) Any payments made pursuant to this Agreement, to the extent of payments made from the date of termination through March 15th of the calendar year following such date, are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) and thus payable pursuant to the “short-term deferral” rule set forth in Treas. Reg. §1.409A-1(b)(4); to the extent such payments are made following said March 15th, they are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) made upon an involuntary termination from service and payable pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), to the maximum extent permitted by said provision. (c) The parties hereto intend that any and all post-employment compensation under this Agreement satisfy the requirements of Section 409A or an exception or exclusion there from to avoid the imposition of any accelerated or additional taxes pursuant to Section 409A. Any terms not specifically defined shall have the meaning as set forth in Section 409A. (d) Notwithstanding the foregoing, no payment shall be made pursuant to Sections 6 or 7 unless such termination of employment is a “separation of service” as defined in Code Section 409A.

409A Safe Harbor. (a) If when Notwithstanding anything in this Agreement to the Executive’s employment terminatescontrary, in no event shall the Employer be obligated to commence payment or distribution to 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. 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 “specified employee,” of the Employer (as defined determined in Code accordance with Section 409A(a)(2)(B)(i409A of the Code), then despite any provision of this Agreement or other plan or agreement to the contrary, the Executive will payment shall not be entitled to the payments until the earliest of: (a) made before the date that is at least six months after the Executive’s Separation from Service for reasons other than the Executive’s death, (b) the date of the Executive’s deathseparation from service (or, or (c) any if earlier date that does not result in additional tax or interest to the Executive under Code Section 409A. As promptly as possible after than the end of the period during which payments are delayed under this provisionsix month period, the entire amount date of Executive’s death). Amounts otherwise payable on an installment basis during such six month period, shall be accumulated and paid in a lump sum on the first day of the delayed payments seventh month, and the balance of any installments shall be paid to the Executive in a single lump sum with any remaining payments to commence payable in accordance with the terms of original schedule. To the extent any payments under this Agreement or other applicable plan or agreementare payable in installments, each installment shall be treated as a separate payment for purposes of Treasury Regulation § 1.409A-2(b)(2). (b) Any payments made pursuant to All in-kind benefits provided and expenses eligible for reimbursement under this Agreement, to Agreement shall be provided by the extent of payments made from Employer or incurred by Executive during the date of termination through March 15th of the calendar year following such date, are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) and thus payable pursuant to the “short-term deferral” rule time periods set forth in Treasthis Agreement. RegAll reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. §1.409A-1(b)(4The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses); . Such right to the extent such payments are made following said March 15th, they are intended reimbursement or in-kind benefits is not subject to constitute separate payments liquidation or exchange for purposes of Treas. Reg. §1.409A-2(b)(2) made upon an involuntary termination from service and payable pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), to the maximum extent permitted by said provisionanother benefit. (c) The parties hereto intend To the extent that any and all post-employment payment or benefit described in this Agreement constitutes nonqualified deferred compensation under this Agreement satisfy Section 409A, and to the requirements extent that such payment or benefit is payable upon Executive’s termination of Section 409A employment, then such payments or an exception or exclusion there benefits shall be payable only upon Executive’s “separation from to avoid service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the imposition of any accelerated or additional taxes pursuant to Section 409A. Any terms not specifically defined shall have the meaning as presumptions set forth in Treasury Regulation Section 409A.§ 1.409A-1(h). (d) Notwithstanding The Employer makes no representation or warranty and shall have no liability to Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensations subject to Section 409A but do not satisfy an exemption from, or the foregoingconditions of, no payment shall be made pursuant to Sections 6 or 7 unless such termination of employment is a “separation of service” as defined in Code Section 409A.

409A Safe Harbor. (a) If when the Executive’s employment terminates, the Executive is a “specified employee,” as defined in Code Section 409A(a)(2)(B)(i), then despite any provision of this Agreement or other plan or agreement to the contrary, the Executive will not be entitled to the payments until the earliest of: (a) the date that is at least six months after the Executive’s Separation from Service for reasons other than the Executive’s death, (b) the date of the Executive’s death, or (c) any earlier date that does not result in additional tax or interest to the Executive under Code Section 409A. As promptly as possible after the end of the period during which payments are delayed under this provision, the entire amount of the delayed payments shall be paid to the Executive in a single lump sum with any remaining payments to commence in accordance with the terms of this Agreement or other applicable plan or agreement. (b) Any payments made pursuant to this Agreement, to the extent of payments made from the date of termination through March 15th of the calendar year following such date, are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) and thus payable pursuant to the “short-term deferral” rule set forth in Treas. Reg. §1.409A-1(b)(4); to the extent such payments are made following said March 15th, they are intended to constitute separate payments for purposes of Treas. Reg. §1.409A-2(b)(2) made upon an involuntary termination from service and payable pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), to the maximum extent permitted by said provision. (c) The parties hereto intend that any and all post-employment compensation under this Agreement satisfy the requirements of Section 409A or an exception or exclusion there from therefrom to avoid the imposition of any accelerated or additional taxes pursuant to Section 409A. Any terms not specifically defined shall have the meaning as set forth in Section 409A. (d) Notwithstanding the foregoing, no payment shall be made pursuant to Sections 6 or 7 unless such termination of employment is a “separation of service” as defined in Code Section 409A.