Common use of Effect of Section 409A of the Code Clause in Contracts

Effect of Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, if the Company reasonably determines (a) that on the date the Chairman’s service as a member of the Board terminates or at such other time that the Company determines to be relevant, the Chairman is a “specified employee” (as such term is defined under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) of the Company and (b) that any payments to be provided to the Chairman pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code (“Section 409A Taxes”) if provided at the time otherwise required under this Agreement then such payments shall be delayed until the date that is six months after date of the Chairman’s “separation from service” (as such term is defined under Section 409A of the Code) with the Company after the Commencement Date, or such shorter period that, as determined by the Company, is sufficient to avoid the imposition of Section 409A Taxes, at which time the entire amount of the delayed payments shall be paid to the Chairman in a single lump sum. The provisions of this Section 5.3 shall only apply to the minimum extent required to avoid the Chairman’s incurrence of any Section 409A Taxes.

Effect of Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, if the Company reasonably determines (a) that on the date the Chairman’s service as a member of the Board terminates or at such other time that the Company determines to be relevant, the Chairman is a “specified employee” (as such term is defined under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) of the Company and (b) that any payments to be provided to the Chairman pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code (“Section 409A Taxes”) if provided at the time otherwise required under this Agreement then such payments shall be delayed until the date that is six months after date of the Chairman’s “separation from service” (as such term is defined under Section 409A of the Code) with the Company after the Commencement Date, or such shorter period that, as determined by the Company, is sufficient to avoid the imposition of Section 409A Taxes, at which time the entire amount of the delayed payments shall be paid to the Chairman in a single lump sum. The provisions of this Section 5.3 8 shall only apply to the minimum extent required to avoid the Chairman’s incurrence of any Section 409A Taxes.

Effect of Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, if the Company reasonably determines (a) that on the date the Chairman’s service as a member of the Board terminates or at such other time that the Company determines to be relevant, the Chairman is a “specified employee” (as such term is defined under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) of the Company and (b) that any payments to be provided to the Chairman pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code (“Section 409A Taxes”) if provided at the time otherwise 4 required under this Agreement then such payments shall be delayed until the date that is six months after date of the Chairman’s “separation from service” (as such term is defined under Section 409A of the Code) with the Company after the Commencement Date, or such shorter period that, as determined by the Company, is sufficient to avoid the imposition of Section 409A Taxes, at which time the entire amount of the delayed payments shall be paid to the Chairman in a single lump sum. The provisions of this Section 5.3 8 shall only apply to the minimum extent required to avoid the Chairman’s incurrence of any Section 409A Taxes.