Common use of Section 409A Delay in Payment Clause in Contracts

Section 409A Delay in Payment. Notwithstanding any other provision of this paragraph 5 to the contrary, if Executive is a “specified employee” within the meaning of section 409A of the Code, payments and benefits that would otherwise be paid or provided during the six month period commencing on the Termination Date will be deferred until the first day of the seventh month following the Termination Date if such deferral is necessary to avoid the additional tax under section 409A of the Code. In the case of a series of payments, the first payment shall include the amounts Executive would have been entitled to receive during the six month waiting period. Any such determination shall be made in the reasonable judgment of the Company after consultation with Executive. Notwithstanding any other provision of this Agreement, Executive shall automatically cease to be an officer of the Parent, the Company and their respective affiliates as of Executive’s Termination Date and, to the extent permitted by applicable law, any and all monies that Executive owes to the Company shall be repaid to the extent possible, through deduction of such amounts from any post-termination payments owed to Executive pursuant to this Agreement. Notwithstanding any other provision of this Agreement, the Company may suspend Executive from performing Executive’s duties under this Agreement; provided, however, that during the period of suspension (which shall end no later than Executive’s Termination Date), Executive shall continue to be treated as an employee of the Company for other purposes, and Executive’s rights to compensation or benefits hereunder shall be in effect. Other than as expressly provided in paragraphs 5(c) and (d), post-termination benefits may not be suspended or not paid; provided, however, that notwithstanding anything contained in this Agreement to the contrary, no payments or benefits (including without limitation, vesting of any and all stock options, shares of restricted stock, restricted stock units and other unvested incentive awards) payable to Executive under this paragraph 5 (except for payments and benefits provided by 5(a)(i) – (iv)) shall be paid to Executive unless he executes a general release of claims against the Company and its affiliates in the form set forth in Exhibit C to this Agreement (the “Release”), and such Release becomes effective and is not revoked.

Section 409A Delay in Payment. Notwithstanding any other provision of this paragraph 5 to the contrary, if Executive is a “specified employee” within the meaning of section 409A of the Code, payments and benefits that would otherwise be paid or provided during the six month period commencing on the Termination Date will be deferred until the first day of the seventh month following the Termination Date if such deferral is necessary to avoid the additional tax under section 409A of the Code. In the case of a series of payments, the first payment shall include the amounts Executive would have been entitled to receive during the six month waiting period. Any such determination shall be made in the reasonable judgment of the Company after consultation with Executive. Notwithstanding any other provision of this Agreement, Executive shall automatically cease to be an officer of the Parent, the Company and their respective affiliates as of Executive’s Termination Date and, to the extent permitted by applicable law, any and all monies that Executive owes to the Company shall be repaid to the extent possible, through deduction of such amounts from any post-termination payments owed to Executive pursuant to this Agreement. Notwithstanding any other provision of this Agreement, the Company may suspend Executive from performing Executive’s duties under this Agreement; provided, however, that during the period of suspension (which shall end no later than Executive’s Termination Date), Executive shall continue to be treated as an employee of the Company for other purposes, and Executive’s rights to compensation or benefits hereunder shall be in effect. Other than as expressly provided in paragraphs 5(c) and (d), post-termination benefits may not be suspended or not paid; provided, however, that notwithstanding anything contained in this Agreement to the contrary, no payments or benefits (including without limitation, vesting of any and all stock options, shares of restricted stock, restricted stock units and other unvested incentive awards) payable to Executive under this paragraph 5 (except for payments and benefits provided by 5(a)(i) – — (iv)) shall be paid to Executive unless he executes a general release of claims against the Company and its affiliates in the form set forth in Exhibit C to this Agreement (the “Release”), and such Release becomes effective and is not revoked.