Common use of Payments Subject to Section 409A of the Code Clause in Contracts

Payments Subject to Section 409A of the Code. (a) Notwithstanding the foregoing provisions of this ARTICLE III, to the extent required by Section 409A of the Code and applicable guidance thereunder, payments that the Key Employee would otherwise be entitled to receive hereunder during the first six months following the date of the Key Employee’s termination of employment will be accumulated and paid on the date that is six months and one day after the date of the Key Employee’s termination of employment (or if such payment date does not fall on a business day of the Company, the next following business day of the Company), or such earlier date upon which such amount can be paid without adverse tax consequences to the Key Employee under Section 409A of the Code; provided, however, that no such delay shall apply with respect to payments to which the Key Employee is entitled in the event of the Key Employee’s death. (b) Any reimbursement of expenses or in-kind benefits provided under this Agreement, that is subject to and not exempt from Section 409A of the Code, shall be subject to the following additional rules: (i) any reimbursement of eligible expenses shall be paid as they are incurred (but not prior to the end of the six-month delay period set forth in Section 3.12(a)); provided that the Key Employee first provides documentation thereof in reasonable detail not later than sixty (60) days following the end of the calendar year in which the eligible expenses were incurred; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit. (c) For purposes of determining the Key Employee’s entitlement to payment of any cash or other remuneration which is deferred compensation under Section 409A of the Code, any provision of this Agreement providing for payment of any such cash or remuneration upon “termination,” “termination of employment” or other event which is a termination of an employment relationship with the Company means that such payment is to be made upon a Separation from Service, with the Company and all of its subsidiaries and affiliates, for any reason, including without limitation, quit, discharge and retirement, and the Company and the Key Employee reasonably anticipate that no further services will be performed after such date or that the level of bona fide services performed after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services if the Key Employee has been providing services for less than 36 months). (d) It is intended that the payments and benefits provided under this Agreement shall either be exempt from application of, or comply with, the requirements of Section 409A of the Code. This Agreement shall be construed, administered, and governed in a manner that affects such intent, and the Company shall not take any action that would be inconsistent with such intent. Without limiting the foregoing, the payments and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out, or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code. Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under this Agreement is not warranted or guaranteed. The Company shall not be held liable for any taxes, interest, penalties, or other monetary amounts owed by the Key Employee or other taxpayers as a result of this Agreement.

Payments Subject to Section 409A of the Code. (a) Notwithstanding the foregoing provisions of this ARTICLE III, to the extent required by Section 409A of the Code and applicable guidance thereunder, payments that the Key Employee would otherwise be entitled to receive hereunder during the first six months following the date of the Key Employee’s termination of employment will be accumulated and paid on the date that is six months and one day after the date of the Key Employee’s termination of employment (or if such payment date does not fall on a business day of the Company, the next following business day of the Company), or such earlier date upon which such amount can be paid without adverse tax consequences to the Key Employee under Section 409A of the Code; provided, however, that no such delay shall apply with respect to payments to which the Key Employee is entitled in the event of the Key Employee’s his death. (b) Any reimbursement of expenses or in-kind benefits provided under this Agreement, that is subject to and not exempt from Section 409A of the Code409A, shall be subject to the following additional rules: (i) any reimbursement of eligible expenses shall be paid as they are incurred (but not prior to the end of the six-month delay period set forth in Section 3.12(a)); provided that the Key Employee first provides documentation thereof in reasonable detail not later than sixty (60) days following the end of the calendar year in which the eligible expenses were incurred; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit. (c) For purposes of determining the a Key Employee’s entitlement to payment of any cash or other remuneration which is deferred compensation under Section 409A of the Code409A, any provision of this Agreement providing for payment of any such cash or remuneration upon “termination,” “termination of employment” or other event which is a termination of an employment relationship with the Company means that such payment is to be made upon a “Separation from Service” (as such term is defined in Treasury regulations issued under Code Section 409A), with the Company and all of its subsidiaries and affiliates, for any reason, including without limitation, quit, discharge and retirement, and the Company and the Key Employee reasonably anticipate that no further services will be performed after such date or that the level of bona fide services performed after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services if the Key Employee has been providing services for less than 36 months). (d) It is intended that the payments and benefits provided under this Agreement shall either be exempt from application of, or comply with, the requirements of Section 409A of the Code. This Agreement shall be construed, administered, and governed in a manner that affects such intent, and the Company shall not take any action that would be inconsistent with such intent. Without limiting the foregoing, the payments and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out, or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code. Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under this Agreement Plan is not warranted or guaranteed. The Company shall not be held liable for any taxes, interest, penalties, or other monetary amounts owed by the Key Employee you or other taxpayers as a result of this the Agreement.

Payments Subject to Section 409A of the Code. (a) Notwithstanding any provision of this Agreement to the foregoing contrary, all provisions of this ARTICLE III, Agreement are intended to the extent required by comply with Section 409A of the Code and the applicable Treasury regulations and administrative guidance thereunderissued thereunder (collectively, “Section 409A”) or an exemption therefrom and shall be construed and administered in accordance with such intent. Any payments under this Agreement that may be excluded from Section 409A 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 Key Employee would otherwise maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be entitled treated as a separate payment. Any payments to receive hereunder during the first six months following the date be made under this Agreement upon a termination of the Key Employee’s employment shall only be made if such termination of employment will be accumulated and paid on the date that is six months and one day after the date of the Key Employee’s termination of employment (or if such payment date does not fall on constitutes a business day of the Company, the next following business day of the Company), or such earlier date upon which such amount can be paid without adverse tax consequences to the Key Employee “separation from service” under Section 409A of 409A. To the Code; provided, however, extent that no such delay shall apply with respect any right to payments to which the Key Employee is entitled in the event of the Key Employee’s death. (b) Any reimbursement of expenses or payment of any benefit in-kind benefits provided under this AgreementAgreement constitutes nonqualified deferred compensation (within the meaning of Section 409A), that is subject to and not exempt from Section 409A (a) any such expense reimbursement shall be made by the Company no later than the last day of the Code, shall be subject to the following additional rules: (i) any reimbursement of eligible expenses shall be paid as they are incurred (but not prior to the end of the six-month delay period set forth in Section 3.12(a)); provided that the Key Employee first provides documentation thereof in reasonable detail not later than sixty (60) days taxable year following the end of the calendar taxable year in which the eligible expenses were incurred; such expense was incurred by Key Employee, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; and (iiib) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit. , and (c) For purposes the amount of determining 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 shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect. Notwithstanding any provision in this Agreement to the contrary, if any payment or benefit provided for herein would be subject to additional taxes and interest under Section 409A if Key Employee’s entitlement to receipt of such payment or benefit is not delayed until the earlier of any cash (x) the date of Key Employee’s death or other remuneration which (y) the date that is deferred compensation under six months after the termination of employment (such date, the “Section 409A of Payment Date”), then such payment or benefit shall not be provided to Key Employee (or Key Employee’s estate, if applicable) until the CodeSection 409A Payment Date. Notwithstanding the foregoing, any provision of this Agreement providing for payment of any such cash or remuneration upon “termination,” “termination of employment” or other event which is a termination of an employment relationship with the Company means that such payment is to be made upon a Separation from Service, with the Company and all of its subsidiaries and affiliates, for any reason, including without limitation, quit, discharge and retirement, and the Company and the Key Employee reasonably anticipate that makes no further services will be performed after such date or that the level of bona fide services performed after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services if the Key Employee has been providing services for less than 36 months). (d) It is intended representations that the payments and benefits provided under this Agreement shall either be are exempt from application offrom, or comply compliant with, the requirements of Section 409A of the Code. This Agreement and in no event shall be construed, administered, and governed in a manner that affects such intent, and the Company shall not take or any action that would of its affiliates be inconsistent with such intent. Without limiting the foregoing, the payments and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out, or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code. Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under this Agreement is not warranted or guaranteed. The Company shall not be held liable for all or any portion of any taxes, interest, penalties, interest or other monetary amounts owed expenses that may be incurred by the Key Employee or other taxpayers as a result on account of this Agreement.non-compliance with Section 409A. ARTICLEVII

Payments Subject to Section 409A of the Code. (a) Notwithstanding any provision of this Agreement to the foregoing contrary, all provisions of this ARTICLE III, Agreement are intended to the extent required by comply with Section 409A of the Code and the applicable Treasury regulations and administrative guidance thereunderissued thereunder (collectively, "Section 409A") or an exemption therefrom and shall be construed and administered in accordance with such intent. Any payments under this Agreement that may be excluded from Section 409A 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 Key Employee would otherwise maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be entitled treated as a separate payment. Any payments to receive hereunder during the first six months following the date be made under this Agreement upon a termination of the Key Employee’s 's employment shall only be made if such termination of employment will be accumulated and paid on the date that is six months and one day after the date of the Key Employee’s termination of employment (or if such payment date does not fall on constitutes a business day of the Company, the next following business day of the Company), or such earlier date upon which such amount can be paid without adverse tax consequences to the Key Employee "separation from service" under Section 409A of 409A. To the Code; provided, however, extent that no such delay shall apply with respect any right to payments to which the Key Employee is entitled in the event of the Key Employee’s death. (b) Any reimbursement of expenses or payment of any benefit in-kind benefits provided under this AgreementAgreement constitutes nonqualified deferred compensation (within the meaning of Section 409A), that is subject to and not exempt from Section 409A (a) any such expense reimbursement shall be made by the Company no later than the last day of the Code, shall be subject to the following additional rules: (i) any reimbursement of eligible expenses shall be paid as they are incurred (but not prior to the end of the six-month delay period set forth in Section 3.12(a)); provided that the Key Employee first provides documentation thereof in reasonable detail not later than sixty (60) days taxable year following the end of the calendar taxable year in which the eligible expenses were incurred; such expense was incurred by Key Employee, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; and (iiib) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit. , and (c) For purposes the amount of determining expenses eligible for reimbursement or in kind benefits provided during any taxable year shall not affect the Key Employee’s entitlement expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year; provided, that the foregoing clause shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect. Notwithstanding any provision in this Agreement to the contrary, if any payment of any cash or other remuneration which is deferred compensation benefit provided for herein would be subject to additional taxes and interest under Section 409A if Key Employee's receipt of such payment or benefit is not delayed until the Code, any provision earlier of this Agreement providing for payment (x) the date of any such cash Key Employee's death or remuneration upon “termination,” “(y) the date that is six months after the termination of employment” employment (such date, the "Section 409A Payment Date"), then such payment or other event which is a termination of an employment relationship with benefit shall not be provided to Key Employee (or Key Employee's estate, if applicable) until the Section 409A Payment Date. Notwithstanding the foregoing, the Company means that such payment is to be made upon a Separation from Service, with the Company and all of its subsidiaries and affiliates, for any reason, including without limitation, quit, discharge and retirement, and the Company and the Key Employee reasonably anticipate that makes no further services will be performed after such date or that the level of bona fide services performed after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services if the Key Employee has been providing services for less than 36 months). (d) It is intended representations that the payments and benefits provided under this Agreement shall either be are exempt from application offrom, or comply compliant with, the requirements of Section 409A of the Code. This Agreement and in no event shall be construed, administered, and governed in a manner that affects such intent, and the Company shall not take or any action that would of its Xxxxxx X. Xxxx Employment Agreement June 19, 2019 affiliates be inconsistent with such intent. Without limiting the foregoing, the payments and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out, or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code. Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under this Agreement is not warranted or guaranteed. The Company shall not be held liable for all or any portion of any taxes, interest, penalties, interest or other monetary amounts owed expenses that may be incurred by the Key Employee or other taxpayers as a result on account of this Agreement.non-compliance with Section 409A.

Payments Subject to Section 409A of the Code. (a) Notwithstanding the foregoing provisions of this ARTICLE III, to the extent required by Section 409A of the Code and applicable guidance thereunder, payments that the Key Employee would otherwise be entitled to receive hereunder during the first six months following the date of the Key Employee’s termination of employment will be accumulated and paid on the date that is six months and one day after the date of the Key Employee’s termination of employment (or if such payment date does not fall on a business day of the Company, the next following business day of the Company), or such earlier date upon which such amount can be paid without adverse tax consequences to the Key Employee under Section 409A of the Code; provided, however, that no such delay shall apply with respect to payments to which the Key Employee is entitled in the event of the Key Employee’s death. (b) Any reimbursement of expenses or in-kind benefits provided under this Agreement, that is subject to and not exempt from Section 409A of the Code, shall be subject to the following additional rules: (i) any reimbursement of eligible expenses shall be paid as they are incurred (but not prior to the end of the six-month delay period set forth in Section 3.12(a)); provided that the Key Employee first provides documentation thereof in reasonable detail not later than sixty (60) days following the end of the calendar year in which the eligible expenses were incurred; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit. (c) For purposes of determining the Key Employee’s entitlement to payment of any cash or other remuneration which is deferred compensation under Section 409A of the Code, any provision of this Agreement providing for payment of any such cash or remuneration upon “termination,” “termination of employment” or other event which is a termination of an employment relationship with the Company means that such payment is to be made upon a “Separation from Service” (as such term is defined in Treasury regulations issued under Code Section 409A), with the Company and all of its subsidiaries and affiliates, for any reason, including without limitation, quit, discharge and retirement, and the Company and the Key Employee reasonably anticipate that no further services will be performed after such date or that the level of bona fide services performed after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services if the Key Employee has been providing services for less than 36 months). (d) It is intended that the payments and benefits provided under this Agreement shall either be exempt from application of, or comply with, the requirements of Section 409A of the Code. This Agreement shall be construed, administered, and governed in a manner that affects such intent, and the Company shall not take any action that would be inconsistent with such intent. Without limiting the foregoing, the payments and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out, or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code. Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under this Agreement Plan is not warranted or guaranteed. The Company shall not be held liable for any taxes, interest, penalties, or other monetary amounts owed by the Key Employee or other taxpayers as a result of this Agreement.

Payments Subject to Section 409A of the Code. (a) Notwithstanding the foregoing provisions of this ARTICLE III, to the extent required by Section 409A of the Code and applicable guidance thereunder, payments that the Key Employee would otherwise be entitled to receive hereunder during the first six months following the date of the Key Employee’s termination of employment will be accumulated and paid on the date that is six months and one day after the date of the Key Employee’s termination of employment (or if such payment date does not fall on a business day of the Company, the next following business day of the Company), or such earlier date upon which such amount can be paid without adverse tax consequences to the Key Employee under Section 409A of the Code; provided, however, that no such delay shall apply with respect to payments to which the Key Employee is entitled in the event of the Key Employee’s death. (b) Any reimbursement of expenses or in-kind benefits provided under this Agreement, that is subject to and not exempt from Section 409A of the Code, shall be subject to the following additional rules: (i) any reimbursement of eligible expenses shall be paid as they are incurred (but not prior to the end of the six-month delay period set forth in Section 3.12(a)); provided that the Key Employee first provides documentation thereof in reasonable detail not later than sixty (60) days following the end of the calendar year in which the eligible expenses were incurred; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit. (c) For purposes of determining the Key Employee’s entitlement to payment of any cash or other remuneration which is deferred compensation under Section 409A of the Code, any provision of this Agreement providing for payment of any such cash or remuneration upon “"termination,” “" "termination of employment” " or other event which is a termination of an employment relationship with the Company means that such payment is to be made upon a "Separation from Service" (as such term is defined in Treasury regulations issued under Code Section 409A), with the Company and all of its subsidiaries and affiliates, for any reason, including without limitation, quit, discharge and retirement, and the Company and the Key Employee reasonably anticipate that no further services will be performed after such date or that the level of bona fide services performed after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services if the Key Employee has been providing services for less than 36 months). (d) It is intended that the payments and benefits provided under this Agreement shall either be exempt from application of, or comply with, the requirements of Section 409A of the Code. This Agreement shall be construed, administered, and governed in a manner that affects such intent, and the Company shall not take any action that would be inconsistent with such intent. Without limiting the foregoing, the payments and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out, or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code. Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under this Agreement Plan is not warranted or guaranteed. The Company shall not be held liable for any taxes, interest, penalties, or other monetary amounts owed by the Key Employee or other taxpayers as a result of this Agreement.