Common use of 409A Savings Clause Clause in Contracts

409A Savings Clause. The intent of the Parties is that payments and benefits under this Agreement will be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively, “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. For purposes of Code Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, a termination of employment shall be deemed to have occurred at the time such termination constitutes a “separation from service” within the meaning of Code Section 409A for purposes of any provision of this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean a “separation from service.” If a payment obligation under this Agreement arises on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six:-month period beginning on the date of such separation from service or, if earlier, within 15 days after the Employee's death. Notwithstanding any other provision to the contrary, in no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.

409A Savings Clause. The intent This Agreement and the Units granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Parties is that payments Code. This Agreement and benefits under this Agreement will the Units shall be exempt from or comply administered, interpreted, and construed in a manner consistent with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively, “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewithCode. For purposes of Code Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, a termination of employment shall be deemed to have occurred at the time such termination constitutes a “separation from service” within the meaning of Code Section 409A for purposes of Should any provision of this Agreement providing for be found not to comply with, or otherwise be exempt from, the payment provisions of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A andof the Code, for purposes of any such provision shall be modified and given effect (retroactively if necessary), in the sole discretion of this Agreementthe Administrator, references and without the consent of the Holder, in such manner as the Administrator determines to a “termination,” “termination be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of employment” the Code. If the Company or like terms shall mean a “separation from service.” If a payment obligation under Administrator by its operation of the Plan or this Agreement arises and by no fault of the Holder causes this Agreement to fail to meet the requirements of paragraphs (2), (3) or (4) of Section 409A(a) of the Code, the Company shall reimburse the Holder for interest and additional tax payable with respect to previously deferred compensation as provided in Section 409A(a)(1)(B) of the Code incurred by the Holder including a tax “gross-up” on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) such reimbursement. Any such reimbursement and determined tax gross-up payment shall be calculated in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest Administrator and shall be paid within 15 days after by the end of the six:-month period beginning on Holder’s taxable year next following the date of such separation from service or, if earlier, within 15 days after Holder’s taxable year in which the Employee's deathrelated taxes are remitted to the taxing authority. Notwithstanding any other provision anything in the Plan to the contrary, in no event shall the Administrator exercise its discretion to accelerate the payment or settlement of the Units unless and to the extent that such accelerated payment or settlement is permissible under Treasury Regulation 1.409A-3(j)(4) or any payment successor provision. Each amount payable under this Agreement that constitutes “deferred compensation” as a dividend equivalent payment or as a payment upon vesting or settlement of the Units is designated as a separate identified payment for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.of the Code.

409A Savings Clause. 25.1 The intent provisions of the Parties is that payments and benefits under this Agreement will be exempt from or are intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended, amended (the “Code”) and the any final regulations and guidance promulgated thereunder (collectively, “Code Section 409A”) and, accordingly, and shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. The Company and Employee agree to the maximum extent permitted, work together in good faith to consider amendments to this Agreement shall be interpreted and to be in compliance therewith. For purposes take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of Code any additional tax or income recognition prior to actual payment to Employee under Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. 409A. 25.2 To the extent that any provision hereof is modified in order to comply with Code Employee will be reimbursed for costs and expenses or in-kind benefits, except as otherwise permitted by Section 409A, (a) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, (b) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; provided that the foregoing clause (b) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such modification expenses are subject to a limit related to the period the arrangement is in effect and (c) such payments shall be made in good faith and shall, to on or before the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company last day of the applicable provision without violating taxable year following the provisions of Code Section 409A. In no event whatsoever shall taxable year in which you incurred the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, a expense. 25.3 A termination of employment shall not be deemed to have occurred at the time such termination constitutes a “separation from service” within the meaning of Code Section 409A for purposes of any provision of this Agreement providing for the payment of any amounts or benefits in connection with upon or following a termination of employment and that is subject to Code unless such termination constitutes a “Separation from Service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, Agreement references to a “termination,” “termination of employment” or like terms shall mean Separation from Service. 25.4 Each installment payable hereunder shall constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b), including Treasury Regulation Section 1.409A-2(b)(2)(iii). Each payment that is made within the terms of the “short-term deferral” rule set forth in Treasury Regulation Section 1.409A-1(b)(4) is intended to meet the “short-term deferral” rule. Each other payment is intended to be a payment upon an involuntary termination from service and payable pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii), et. seq., to the maximum extent permitted by that regulation, with any amount that is not exempt from Code Section 409A being subject to Code Section 409A. 25.5 Notwithstanding anything to the contrary in this Agreement, if Employee is a “separation from service.specified employee” If a payment obligation under this Agreement arises on account within the meaning of Section 409A at the time of Employee’s termination, then only that portion of the severance and benefits payable to Employee pursuant to this Agreement, if any, and any other severance payments or separation from service while Employee is a " specified employee" benefits which may be considered deferred compensation under Section 409A (together, the “Deferred Compensation Separation Benefits”), which (when considered together) do not exceed the Section 409A Limit (as defined under Code Section 409A(a)(2)(B)(iherein) and determined in good faith by may be made within the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within first six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after following Employee’s termination of employment in accordance with the end payment schedule applicable to each payment or benefit. Any portion of the six:-month Deferred Compensation Separation Benefits in excess of the Section 409A Limit otherwise due to Employee on or within the six (6) month period beginning following Employee’s termination will accrue during such six (6) month period and will become payable in one lump sum cash payment on the date six (6) months and one (1) day following the date of such separation from service orEmployee’s termination of employment. All subsequent Deferred Compensation Separation Benefits, if earlierany, within 15 days after will be payable in accordance with the Employee's deathpayment schedule applicable to each payment or benefit. Notwithstanding any other provision anything herein to the contrary, if Employee dies following termination but prior to the six (6) month anniversary of Employee’s termination date, then any payments delayed in no event shall any accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment under this Agreement that constitutes “deferred compensation” for schedule applicable to each payment or benefit. 25.6 For purposes of Code this Agreement, “Section 409A Limit” will mean a sum equal (x) to the amounts payable prior to March 15 following the year in which Employee’s employment terminates plus (y) the lesser of two (2) times: (i) Employee’s annualized compensation based upon the annual rate of pay paid to Employee during the Company’s taxable year preceding the Company’s taxable year of Employee’s termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any IRS guidance issued with respect thereto; or (ii) the maximum amount that may be subject taken into account under a qualified plan pursuant to offset by any other amount unless otherwise permitted by Section 401(a)(17) of the Code Section 409A.for the year in which Employee’s employment is terminated.

409A Savings Clause. The intent of the Parties is parties intend that payments and or benefits payable under this Agreement will not be exempt from or comply with subject to the additional tax imposed pursuant to Section 409A of the Internal Revenue Code of 1986, as amendedamended (“Section 409A”), and the regulations provisions of this Agreement shall be construed and guidance promulgated thereunder (collectively, “Code administered in accordance with such intent. To the extent such potential payments or benefits could become subject to Section 409A”) and, accordinglythe parties shall cooperate to amend this Agreement with the goal of giving Executive the economic benefits described herein in a manner that does not result in such tax being imposed. If the parties are unable to agree on a mutually acceptable amendment, Company may, without Executive’s consent and in such manner as it deems appropriate or desirable, amend or modify this Agreement or delay the payment of any amounts hereunder to the maximum minimum extent permitted, necessary to meet the requirements of Section 409A. No provision of this Agreement shall be interpreted or construed to be in compliance therewith. For purposes of Code Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. To the extent that transfer any provision hereof is modified in order liability for failure to comply with Code the requirements of Section 409A, such modification shall be made in good faith and shall, 409A from Executive or any other individual to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. Company. In no event whatsoever shall the does Company be liable for guarantee any additional taxparticular tax consequences, interest outcome or penalty that may be imposed on Employee by Code Section 409A or damages for failing tax liability to comply with Code Section 409A. Notwithstanding anything herein to the contrary, a Executive. A termination of employment shall not be deemed to have occurred at the time such termination constitutes a “separation from service” within the meaning of Code Section 409A for purposes of any provision of this Agreement providing for the payment of any amounts or benefits in connection with upon or following a termination of employment and that unless such termination is subject to Code also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of this Agreement,” “termination of employment” or like terms shall mean a “separation from service.” If a payment obligation under this Agreement arises on account For purposes of EmployeeSection 409A, Executive’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect right to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and receive installment payments shall be paid within 15 days after the end treated as a right to receive a series of the six:-month period beginning on the date of such separation from service or, if earlier, within 15 days after the Employee's deathseparate and distinct payments. Notwithstanding any other provision to the contrary, in no event shall any Whenever a payment under this Agreement that constitutes “deferred compensation” for purposes specifies a payment period with reference to a number of Code Section 409A days, the actual date of payment within the specified period shall be subject within the sole discretion of Company. Payments made in accordance with Company’s standard payroll practices shall be made on each payroll date pursuant to offset by any other amount unless otherwise the payroll schedule in effect on the effective date of the Agreement or, in the event of a change in the payroll schedule, within 30 days after each such payroll date to the extent permitted by Code under Section 409A.

409A Savings Clause. The intent of the Parties is that (a) Any payments and benefits under this Agreement will that may be exempt excluded from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder amended (collectively, hereinafter “Code Section 409A”) and, accordingly, either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewithpossible. For purposes of Code Section 409A, the right to a series of each installment payments payment provided under this Agreement shall be treated as a right to a series of separate paymentspayment. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and All provisions shall, to the maximum extent reasonably possible, maintain be construed and interpreted in a manner which will cause such provisions to be implemented in a manner which complies with the original intent and economic benefit to Employee applicable requirements of Section 409A and the Company regulations promulgated thereunder so as to avoid subjecting the Executive to taxation under Section 409A(a)(i)(A) of the applicable provision without violating the provisions Internal Revenue Code of Code Section 409A. In no event whatsoever shall the Company 1986, as amended. (a) Any payments to be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, made under this Agreement upon a termination of employment shall only be deemed to have occurred at the time made if such termination of employment constitutes a “"separation from service" under Section 409A.” within the meaning of Code Section 409A for purposes of Notwithstanding any provision of this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A and, for purposes of any such other provision of this Agreement, references to a “termination,” “if at the time of the Executive's termination of employment” or like terms shall mean , he is a “separation from service.” If a payment obligation "specified employee", determined in accordance with Section 409A, any payments and benefits provided under this Agreement arises or otherwise that constitute "nonqualified deferred compensation" subject to Section 409A that are provided to the Executive on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such his separation from service shall accrue not be paid until the first payroll date to occur following the six-month anniversary of the Executive's termination date ("Specified Employee Payment Date"). The aggregate amount of any payments that would otherwise have been made during such six-month period shall be paid in a lump sum on the Specified Employee Payment Date without interest and thereafter, any remaining payments shall be paid within 15 days after without delay in accordance with their original schedule. If the end of Executive dies during the six:-month period beginning on six-month period, any delayed payments shall be paid to the date of such separation from service or, if earlier, within 15 days after Executive's estate in a lump sum upon the EmployeeExecutive's death. Notwithstanding any other provision to . (b) To the contraryextent required by Section 409A, in no event shall any payment each reimbursement or in-kind benefit provided under this Agreement that constitutes “deferred compensation” shall be provided in accordance with the following: (i) the amount of expenses eligible for purposes reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year. (ii) any reimbursement of Code Section 409A an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (iii) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to offset by any other amount unless otherwise permitted by Code Section 409A.liquidation or exchange for another benefit.

409A Savings Clause. The intent of the Parties is that (a) (a) Any payments and benefits under this Agreement will that may be exempt excluded from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder amended (collectively, hereinafter “Code Section 409A”) and, accordingly, either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewithpossible. For purposes of Code Section 409A, the right to a series of each installment payments payment provided under this Agreement shall be treated as a right to a series of separate paymentspayment. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and All provisions shall, to the maximum extent reasonably possible, maintain be construed and interpreted in a manner which will cause such provisions to be implemented in a manner which complies with the original intent and economic benefit to Employee applicable requirements of Section 409A and the Company regulations promulgated thereunder so as to avoid subjecting the Executive to taxation under Section 409A(a)(i)(A) of the applicable provision without violating the provisions Internal Revenue Code of Code Section 409A. In no event whatsoever shall the Company 1986, as amended. (b) Any payments to be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, made under this Agreement upon a termination of employment shall only be deemed to have occurred at the time made if such termination of employment constitutes a “"separation from service" under Section 409A.” within the meaning of Code Section 409A for purposes of Notwithstanding any provision of this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A and, for purposes of any such other provision of this Agreement, references to a “termination,” “if at the time of the Executive's termination of employment” or like terms shall mean , he is a “separation from service.” If a payment obligation "specified employee", determined in accordance with Section 409A, any payments and benefits provided under this Agreement arises or otherwise that constitute "nonqualified deferred compensation" subject to Section 409A that are provided to the Executive on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such his separation from service shall accrue not be paid until the first payroll date to occur following the six-month anniversary of the Executive's termination date ("Specified Employee Payment Date"). The aggregate amount of any payments that would otherwise have been made during such six-month period shall be paid in a lump sum on the Specified Employee Payment Date without interest and thereafter, any remaining payments shall be paid within 15 days after without delay in accordance with their original schedule. If the end of Executive dies during the six:-month period beginning on six-month period, any delayed payments shall be paid to the date of such separation from service or, if earlier, within 15 days after Executive's estate in a lump sum upon the EmployeeExecutive's death. Notwithstanding any other provision to . (c) To the contraryextent required by Section 409A, in no event shall any payment each reimbursement or in-kind benefit provided under this Agreement that constitutes “deferred compensation” shall be provided in accordance with the following: (i) the amount of expenses eligible for purposes reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year. (iii) any reimbursement of Code Section 409A an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (d) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to offset by any other amount unless otherwise permitted by Code Section 409A.liquidation or exchange for another benefit.

409A Savings Clause. The intent of the Parties parties is that payments and benefits under this Agreement will be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively, “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. For purposes of Code Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, a termination of employment shall be deemed to have occurred at the time such termination constitutes a “separation from service” within the meaning of Code Section 409A for purposes of any provision of this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean a “separation from service.” If a payment obligation under this Agreement arises on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six:-month period beginning on the date of such separation from service or, if earlier, within 15 days after the Employee's death. Notwithstanding any other provision to the contrary, in no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.

409A Savings Clause. The intent of the Parties is that payments (a) If and benefits under this Agreement will be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively, “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. For purposes of Code Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. To the extent that any provision hereof is modified of this Agreement would result in order to the payment or deferral of compensation in a manner which does not comply with the provisions of Section 409A of the Code Section 409Aand the Treasury regulations promulgated thereunder, such modification shall be made in good faith and provisions shall, to the maximum extent reasonably possible, maintain be construed and interpreted in a manner which will cause such provisions to be implemented in a manner which complies with the original intent and economic benefit to Employee applicable requirements of Section 409A and the Company Treasury regulations promulgated thereunder so as to avoid subjecting the Executive to taxation under Section 409A(a)(i)(A) of the applicable provision without violating Code. In connection with the provisions foregoing, for purposes of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrarythis Agreement, a termination of the Executive’s employment shall not be deemed to have occurred at the time occur unless such termination constitutes a “separation from serviceservice within the meaning of the Treasury regulations promulgated under Section 409A of the Code. If any payment provided for by this Agreement could, as a result of the period of time within which such payment is required to be made, be paid to the Executive in one of two consecutive taxable years of the Executive, the Executive shall have no right to determine the taxable year in which such payment is made. (b) No amount of “deferred compensation” within the meaning of Code Section 409A for purposes of any provision of shall be payable solely pursuant to a Change in Control event defined in this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A and, for purposes of any such provision of this Agreement, references to which event does not also qualify as a “termination,” “termination of employmentchange in ownership” or like terms “change in control” within the meaning of Section 409A, provided however, it being understood that such amounts shall mean vest without immediate payment. (c) In addition, if at the time a “separation from service.” If a payment obligation under this Agreement arises Double Trigger Event occurs, the common stock of the Company or, if applicable, the Successor is publicly traded on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by an established securities market, the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled amounts required to be paid to the Executive that are “deferred compensation” within the meaning of Section 409A shall be paid to the Executive (or in the case of the Executive's death, to the personal representative of the Executive's estate) on the first business day following the earlier of: (a) the date of the Executive's death; and (b) the end of the six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six:-month month period beginning which begins on the first day following: the date of such separation from service or, if earlier, within 15 days after the Employee's death. Notwithstanding any other provision to the contrary, in no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.Double Trigger Event occurs.

409A Savings Clause. The intent of the Parties is that (a) Any payments and benefits under this Agreement will that may be exempt excluded from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder amended (collectively, hereinafter “Code Section 409A”) and, accordingly, either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewithpossible. For purposes of Code Section 409A, the right to a series of each installment payments payment provided under this Agreement shall be treated as a right to a series of separate paymentspayment. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and All provisions shall, to the maximum extent reasonably possible, maintain be construed and interpreted in a manner which will cause such provisions to be implemented in a manner which complies with the original intent and economic benefit to Employee applicable requirements of Section 409A and the Company regulations promulgated thereunder so as to avoid subjecting the Executive to taxation under Section 409A(a)(i)(A) of the applicable provision without violating the provisions Internal Revenue Code of Code Section 409A. In no event whatsoever shall the Company 1986, as amended. (b) Any payments to be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, made under this Agreement upon a termination of employment shall only be deemed to have occurred at the time made if such termination of employment constitutes a “separation from service” within the meaning of Code under Section 409A for purposes of 409A. Notwithstanding any provision of this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A and, for purposes of any such other provision of this Agreement, references to a “termination,” “if at the time of the Executive's termination of employment” or like terms shall mean , he is a “separation from service.” If a payment obligation specified employee”, determined in accordance with Section 409A, any payments and benefits provided under this Agreement arises or otherwise that constitute “nonqualified deferred compensation” subject to Section 409A that are provided to the Executive on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such his separation from service shall accrue not be paid until the first payroll date to occur following the six-month anniversary of the Executive’s termination date (“Specified Employee Payment Date”). The aggregate amount of any payments that would otherwise have been made during such six-month period shall be paid in a lump sum on the Specified Employee Payment Date without interest and thereafter, any remaining payments shall be paid within 15 days after without delay in accordance with their original schedule. If the end of Executive dies during the six:-month period beginning on six-month period, any delayed payments shall be paid to the date of such separation from service or, if earlier, within 15 days after Executive’s estate in a lump sum upon the EmployeeExecutive's death. Notwithstanding any other provision to . (c) To the contraryextent required by Section 409A, in no event shall any payment each reimbursement or in-kind benefit provided under this Agreement that constitutes “deferred compensation” shall be provided in accordance with the following: (i) the amount of expenses eligible for purposes reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year. (iii) any reimbursement of Code Section 409A an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (d) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to offset by any other amount unless otherwise permitted by Code Section 409A.liquidation or exchange for another benefit.

409A Savings Clause. The intent of the Parties is that (a) (a) Any payments and benefits under this Agreement will that may be exempt excluded from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder amended (collectively, hereinafter “Code Section 409A”) and, accordingly, either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewithpossible. For purposes of Code Section 409A, the right to a series of each installment payments payment provided under this Agreement shall be treated as a right to a series of separate paymentspayment. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and All provisions shall, to the maximum extent reasonably possible, maintain be construed and interpreted in a manner which will cause such provisions to be implemented in a manner which complies with the original intent and economic benefit to Employee applicable requirements of Section 409A and the Company regulations promulgated thereunder so as to avoid subjecting the Executive to taxation under Section 409A(a)(i)(A) of the applicable provision without violating the provisions Internal Revenue Code of Code Section 409A. In no event whatsoever shall the Company 1986, as amended. (b) Any payments to be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, made under this Agreement upon a termination of employment shall only be deemed to have occurred at the time made if such termination of employment constitutes a “"separation from service" under Section 409A.” within the meaning of Code Section 409A for purposes of Notwithstanding any provision of this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A and, for purposes of any such other provision of this Agreement, references to a “termination,” “if at the time of the Executive's termination of employment” or like terms shall mean , he is a “separation from service.” If a payment obligation "specified employee", determined in accordance with Section 409A, any payments and benefits provided under this Agreement arises or otherwise that constitute "nonqualified deferred compensation" subject to Section 409A that are provided to the Executive on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such his separation from service shall accrue not be paid until the first payroll date to occur following the six-month anniversary of the Executive's termination date ("Specified Employee Payment Date"). The aggregate amount of any payments that would otherwise have been made during such six-month period shall be paid in a lump sum on the Specified Employee Payment Date without interest and thereafter, any remaining payments shall be paid within 15 days after without delay in accordance with their original schedule. If the end of Executive dies during the six:-month period beginning on six-month period, any delayed payments shall be paid to the date of such separation from service or, if earlier, within 15 days after Executive's estate in a lump sum upon the EmployeeExecutive's death. Notwithstanding any other provision to . (c) To the contraryextent required by Section 409A, in no event shall any payment each reimbursement or in-kind benefit provided under this Agreement that constitutes “deferred compensation” shall be provided in accordance with the following: (i) the amount of expenses eligible for purposes reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year. (ii) any reimbursement of Code Section 409A an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (iii) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to offset by any other amount unless otherwise permitted by Code Section 409A.liquidation or exchange for another benefit.

409A Savings Clause. The intent This Agreement and the Restricted Units granted hereunder are intended to fit within the “short-term deferral” exemption from Section 409A of the Parties is that payments and benefits under this Agreement will Code, as set forth in Treasury Regulation Section 1.409A-1(b)(4) or any successor provision, or to comply with, or otherwise be exempt from or comply from, Section 409A of the Code. This Agreement shall be administered, interpreted and construed in a manner consistent with Section 409A of the Internal Revenue Code Code. Each amount payable under this Agreement is designated as a separate identified payment for purposes of 1986, as amended, and Section 409A of the regulations and guidance promulgated thereunder (collectively, “Code Code. The payment of dividend equivalents under Section 409A”) and, accordingly, to the maximum extent permitted, 4 of this Agreement shall be interpreted to be in compliance therewith. For purposes construed as earnings and the time and form of Code Section 409A, the right to a series payment of installment payments under this Agreement such dividend equivalents shall be treated as a right separately from the time and form of payment of the underlying Restricted Units for purposes of Section 409A of the Code. If the Restricted Units are subject to a series section 409A of separate payments. To the extent that any provision hereof is modified in order to comply with Code Section 409ACode, such modification (I) distributions shall only be made in good faith a manner and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company upon an event permitted under section 409A of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company Code, (II) payments to be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, made upon a termination of employment shall only be deemed to have occurred at the time such termination constitutes made upon a “separation from service” within under section 409A of the meaning Code, and (III) in no event shall Grantee, directly or indirectly, designate the calendar year in which a distribution is made except in accordance with section 409A of Code Section 409A the Code. If the Restricted Unit grant under this Agreement is to be distributed upon separation from service and the Grantee is a “specified employee” for purposes of any provision of this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A andof the Code, the Agreement shall be administered so that any distribution shall be postponed for purposes six months following the date of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean a “the Grantee’s separation from service.” , if required by section 409A of the Code. If a payment obligation under this Agreement arises on account distribution is delayed pursuant to section 409A of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company)Code, any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and distribution shall be paid within 15 days after the end of the six:-month period beginning on six-month period. If the date Grantee dies during such six-month period, any postponed amounts shall be paid within 90 days of such separation from service or, if earlier, within 15 days after the Employee's Grantee’s death. Notwithstanding any other provision anything in this Agreement to the contrary, Grantee shall be solely responsible for the tax consequences under this Agreement, and in no event shall the Company have any payment responsibility or liability if a Grant does not meet any applicable requirements of section 409A of the Code. Although the Company intends to administer the Agreement to prevent taxation under this section 409A of the Code, the Company does not represent or warrant that the Agreement that constitutes “deferred compensation” for purposes complies with any provision of Code Section 409A be subject to offset by any federal, state, local or other amount unless otherwise permitted by Code Section 409A.tax law.

409A Savings Clause. The intent of (i) No action shall be taken hereunder or under the Parties is that payments and benefits under this Agreement will be exempt from or Plan which shall cause a Stock Option to fail to comply with Section 409A of the Internal Revenue Code of 1986, as amended, and (the regulations and guidance promulgated thereunder (collectively, “Code Section 409ACode”) and, accordinglyor the Treasury Regulations thereunder, to the maximum extent permittedapplicable to such Stock Option. If the Company determines that a Stock Option may be subject to Section 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued after the date of this Agreement), the Company may take any action that it determines to be necessary or appropriate to (a) exempt the Stock Option from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Stock Option, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance and thereby avoid the application of any penalty taxes under Section 409A of the Code. (ii) The Plan, this Agreement and the Stock Option granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Code. The Plan, this Agreement and the Stock Option shall be interpreted to be administered, interpreted, and construed in compliance therewitha manner consistent with Section 409A of the Code. For purposes Should any provision of Code Section 409A, the right to a series of installment payments under Plan or this Agreement shall be treated as a right to a series of separate payments. To the extent that any provision hereof is modified in order found not to comply with Code Section 409Awith, such modification shall or otherwise be made in good faith and shallexempt from, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever 409A of the Code, such provision shall be modified and given effect (retroactively if necessary), in the sole discretion of the Company, and without the consent of Optionee, in such manner as the Company determines to be liable for any additional taxnecessary or appropriate to comply with, interest or penalty that may be imposed on Employee by Code to effectuate an exemption from, Section 409A or damages for failing to comply with Code Section 409A. of the Code. (iii) Notwithstanding anything herein to in the contrary, a termination of employment shall be deemed to have occurred at the time such termination constitutes a “separation from service” within the meaning of Code Section 409A for purposes of any provision of Plan or this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean a “separation from service.” If a payment obligation under this Agreement arises on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six:-month period beginning on the date of such separation from service or, if earlier, within 15 days after the Employee's death. Notwithstanding any other provision to the contrary, in no event shall any the Company exercise its discretion to accelerate the payment under or settlement of this Agreement that constitutes “Stock Option where such payment or settlement would constitute deferred compensation” for purposes compensation within the meaning of Code Section 409A be subject of the Code unless and to offset by the extent that such accelerated payment or settlement is permissible under Treasury Regulation 1.409A-3(j)(4) or any other amount unless otherwise permitted by Code Section 409A.successor provision.

409A Savings Clause. The intent This Agreement and the Units granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Parties is that payments Code. This Agreement and benefits under this Agreement will the Units shall be exempt from or comply administered, interpreted, and construed in a manner consistent with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively, “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewithCode. For purposes of Code Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, a termination of employment shall be deemed to have occurred at the time such termination constitutes a “separation from service” within the meaning of Code Section 409A for purposes of Should any provision of this Agreement providing for be found not to comply with, or otherwise be exempt from, the payment provisions of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A andof the Code, for purposes of any such provision shall be modified and given effect (retroactively if necessary), in the sole discretion of this Agreementthe Administrator, references and without the consent of the Holder, in such manner as the Administrator determines to a “termination,” “termination be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of employment” the Code. If the Company or like terms shall mean a “separation from service.” If a payment obligation under Administrator by its operation of the Plan or this Agreement arises and by no fault of the Holder causes this Agreement to fail to meet the requirements of paragraphs (2), (3) or (4) of Section 409A(a) of the Code, the Company shall reimburse the Holder for interest and additional tax payable with respect to previously deferred compensation as provided in Section 409A(a)(1)(B) of the Code incurred by the Holder including a tax “gross-up” on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) such reimbursement. Any such reimbursement and determined tax gross-up payment shall be calculated in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest Administrator and shall be paid within 15 days after by the end of the six:-month period beginning on Holder’s taxable year next following the date of such separation from service or, if earlier, within 15 days after Holder’s taxable year in which the Employee's deathrelated taxes are remitted to the taxing authority. Notwithstanding any other provision anything in the Plan to the contrary, in no event shall the Administrator exercise its discretion to accelerate the payment or settlement of the Units unless and to the extent that such accelerated payment or settlement is permissible under Treasury Regulation 1.409A-3(j)(4) or any payment successor provision. Each amount payable under this Agreement that constitutes “deferred compensation” as a dividend equivalent payment or as a payment upon vesting of the Units is designated as a separate identified payment for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.of the Code.

409A Savings Clause. The intent of the Parties is that (a) (a) Any payments and benefits under this Agreement will that may be exempt excluded from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder amended (collectively, hereinafter “Code Section 409A”) and, accordingly, either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewithpossible. For purposes of Code Section 409A, the right to a series of each installment payments payment provided under this Agreement shall be treated as a right to a series of separate paymentspayment. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and All provisions shall, to the maximum extent reasonably possible, maintain be construed and interpreted in a manner which will cause such provisions to be implemented in a manner which complies with the original intent and economic benefit to Employee applicable requirements of Section 409A and the Company regulations promulgated thereunder so as to avoid subjecting the Executive to taxation under Section 409A(a)(i)(A) of the applicable provision without violating the provisions Internal Revenue Code of Code Section 409A. In no event whatsoever shall the Company 1986, as amended. (b) Any payments to be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, made under this Agreement upon a termination of employment shall only be deemed to have occurred at the time made if such termination of employment constitutes a “separation from service” within the meaning of Code under Section 409A for purposes of 409A.” Notwithstanding any provision of this Agreement providing for the payment of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A and, for purposes of any such other provision of this Agreement, references to a “termination,” “if at the time of the Executive’s termination of employment” or like terms shall mean , he is a “separation from service.” If a payment obligation specified employee”, determined in accordance with Section 409A, any payments and benefits provided under this Agreement arises or otherwise that constitute “nonqualified deferred compensation” subject to Section 409A that are provided to the Executive on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such his separation from service shall accrue not be paid until the first payroll date to occur following the six-month anniversary of the Executive’s termination date (“Specified Employee Payment Date”). The aggregate amount of any payments that would otherwise have been made during such six-month period shall be paid in a lump sum on the Specified Employee Payment Date without interest and thereafter, any remaining payments shall be paid within 15 days after without delay in accordance with their original schedule. If the end of Executive dies during the six:-month period beginning on the date of such separation from service orsix-month period, if earlier, within 15 days after the Employee's death. Notwithstanding any other provision delayed payments shall be paid to the contraryExecutive’s estate in a lump sum upon the Executive’s death. (c) To the extent required by Section 409A, in no event shall any payment each reimbursement or in-kind benefit provided under this Agreement that constitutes “deferred compensation” shall be provided in accordance with the following: (i) the amount of expenses eligible for purposes reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year. (ii) any reimbursement of Code Section 409A an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (iii) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to offset by any other amount unless otherwise permitted by Code Section 409A.liquidation or exchange for another benefit.

409A Savings Clause. The intent This Agreement and the Units granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Parties is that payments Code. This Agreement and benefits under this Agreement will the Units shall be exempt from or comply administered, interpreted, and construed in a manner consistent with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively, “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewithCode. For purposes of Code Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Employee and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Employee by Code Section 409A or damages for failing to comply with Code Section 409A. Notwithstanding anything herein to the contrary, a termination of employment shall be deemed to have occurred at the time such termination constitutes a “separation from service” within the meaning of Code Section 409A for purposes of Should any provision of this Agreement providing for be found not to comply with, or otherwise be exempt from, the payment provisions of any amounts or benefits in connection with a termination of employment and that is subject to Code Section 409A andof the Code, for purposes of any such provision shall be modified and given effect (retroactively if necessary), in the sole discretion of this Agreementthe Administrator, references and without the consent of the Holder, in such manner as the Administrator determines to a “termination,” “termination be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of employment” the Code. If the Company or like terms shall mean a “separation from service.” If a payment obligation under Administrator by its operation of the Plan or this Agreement arises and by no fault of the Holder causes this Agreement to fail to meet the requirements of paragraphs (2), (3) or (4) of Section 409A(a) of the Code, the Company shall reimburse the Holder for interest and additional tax payable with respect to previously deferred compensation as provided in Section 409A(a)(1)(B) of the Code incurred by the Holder including a tax “gross- up” on account of Employee’s separation from service while Employee is a " specified employee" (as defined under Code Section 409A(a)(2)(B)(i) such reimbursement. Any such reimbursement and determined tax gross-up payment shall be calculated in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section l .409A-l (b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-l(b)(3) through (b)(l2)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest Administrator and shall be paid within 15 days after by the end of the six:-month period beginning on Holder’s taxable year next following the date of such separation from service or, if earlier, within 15 days after Holder’s taxable year in which the Employee's deathrelated taxes are remitted to the taxing authority. Notwithstanding any other provision anything in the Plan to the contrary, in no event shall the Administrator exercise its discretion to accelerate the payment or settlement of the Units unless and to the extent that such accelerated payment or settlement is permissible under Treasury Regulation 1.409A-3(j)(4) or any payment successor provision. Each amount payable under this Agreement that constitutes “deferred compensation” as a Dividend Equivalent or as a payment upon vesting or settlement of the Units is designated as a separate identified payment for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.of the Code.