Common use of Section 409A; Section 280G Clause in Contracts

Section 409A; Section 280G. (a) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date (collectively, “409A Guidance”). Notwithstanding anything in this Agreement to the contrary, if a payment obligation under this Agreement arises on account of your separation from service while you are a “specified employee” (as defined under 409A Guidance), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue with interest and shall be paid within fifteen (15) days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of your estate following your death. For purposes of the preceding sentence, interest shall accrue at the prime rate of interest plus five percent (5%), as published in the northeast edition of The Wall Street Journal on the date of your separation from service. The Company shall consult with you in good faith regarding the implementation of this Section 3; provided, that neither the Company nor any of its Subsidiaries, nor any of their respective directors, employees or representatives shall have any liability to you with respect to such implementation provided such implementation is done in good faith. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to you under this Agreement. The Company shall not be liable to you for any payment made under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in gross income under Section 409A of the Code. For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement mean, for purposes of any payments under this Agreement that are payments of deferred compensation subject to Section 409A of the Code, your “separation from service” as defined in Section 409A of the Code.

Section 409A; Section 280G. (a) To It is the extent applicable, intention of the parties that this Agreement shall be interpreted in accordance exempt from or comply strictly with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) ), and Department of Treasury regulations Regulations and other interpretive Internal Revenue Service guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after promulgated thereunder (the Effective Date (collectively, “Section 409A GuidanceRules”). Notwithstanding anything in this Agreement Consistent with that intention, all references hereunder to termination of the Executive’s employment with the Company shall mean separation from the service of the service recipient under the 409A Rules. Further, to the contrary, if extent the Executive is a payment obligation specified employee under this Agreement arises on account of your separation from service while you are a “specified employee” (as defined under the 409A Guidance)Rules, any payment payments of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to compensation within the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to meaning of the 409A Rules will be paid within deferred and accumulated for a period of six (6) months after such separation from service shall accrue with interest and shall one (1) day and will be paid in a lump sum on such date, unless the Executive dies within fifteen (15) days after such period, in which event payment will be made upon his death. Thereafter, the end normal schedule for the remaining payments will commence. In addition, the Executive’s entitlement to the payments of the six-month period beginning on the date of such separation from service or, if earlier, within fifteen (15severance benefits described in Section 9(c) days after the appointment of the personal representative or executor of your estate following your death. For purposes of the preceding sentence, interest shall accrue at the prime rate of interest plus five percent (5%), as published in the northeast edition of The Wall Street Journal on the date of your separation from service. The Company shall consult with you in good faith regarding the implementation of this Section 3; provided, that neither the Company nor any of its Subsidiaries, nor any of their respective directors, employees or representatives shall have any liability to you with respect to such implementation provided such implementation is done in good faith. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to you under this Agreement. The Company shall not be liable to you for any payment made under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in gross income under Section 409A of the Code. For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right the entitlement to a series of separate payments. “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement mean, payments for purposes of any payments under this Agreement that are payments of deferred compensation subject to the Section 409A Rules. Accordingly, this Agreement, including, but not limited to, any provisions relating to severance payments, may be amended from time to time as may be necessary or appropriate to comply with the Section 409A Rules. (b) The Company represents that it has obtained the requisite approval of the Code, your “separation from service” as defined in Section 409A shareholders of the CodeCompany in accordance with Section 280G(b)(5)(A)(ii) of the Code to avoid the payments contemplated herein and in the Bonus Agreement attached hereto as Annex A (the “Bonus Agreement”) from being characterized as “parachute payments” and the imposition of an excise tax or loss of corporate deduction.

Section 409A; Section 280G. (a) To It is the extent applicable, intention of the parties to this Agreement shall be interpreted in accordance that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences to Employee or the Company with regard to Section 409A of the Internal Revenue Code of 1986, as amended 1986 (the “Code”) and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date (collectively, “409A GuidanceSection 409A”). Notwithstanding anything This Agreement shall be interpreted to that end and consistent with that objective. The Company and the Employee shall, to the extent necessary to comply with Section 409A and permitted thereunder, agree to act reasonably and in good faith to mutually reform the provisions of this Agreement to avoid the contraryapplication of the additional tax and interest under Section 409A(a)(1)(B), provided that any such reformation shall not negatively impact the economics of the Company or the Employee hereunder. Notwithstanding any other provision herein, if a payment obligation under this Agreement arises on account of your separation from service while you are Employee is a “specified employee,” (as defined under 409A Guidance)in, and pursuant to, Treasury Regulation Section 1.409A-1(i) or any successor regulation, on the date of termination, no payment of any “deferred compensation” (”, as defined under Treasury Regulation Section 1.409A-1(b)(1)1.409A or any successor regulation, after giving effect shall be made to Employee during the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within period lasting until the earlier of six (6) months after such separation from service shall accrue with interest and shall be paid within fifteen (15) days after the end of the six-month period beginning on the date of termination or upon Employee’s death. If any payment to Employee is delayed pursuant to the foregoing sentence, such separation from service payment instead shall be made on the first business day following the expiration of the six (6) month period referred to in the prior sentence or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of your estate following your death. For purposes of the preceding sentence, interest shall accrue at the prime rate of interest plus five percent (5%), as published in the northeast edition case of The Wall Street Journal on the date of your separation from service. The Company shall consult with you Employee’s death, promptly thereafter. (b) Except as otherwise specifically provided in good faith regarding the implementation of this Section 3; provided, that neither the Company nor any of its Subsidiaries, nor any of their respective directors, employees or representatives shall have any liability to you with respect to such implementation provided such implementation is done in good faith. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to you under this Agreement. The Company shall not be liable , if any reimbursement to you for any payment made which the Employee is entitled under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in gross income under Section 409A of the Code. For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement mean, for purposes of any payments under this Agreement that are payments of would constitute deferred compensation subject to Section 409A of the Code, your “separation from service” the following additional rules shall apply: (i) the reimbursable expense must have been incurred, except as defined otherwise expressly provided in this Agreement, during the term of this Agreement; (ii) the amount of expenses eligible for reimbursement during any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year; (iii) the reimbursement shall be made not later than December 31 of the calendar year following the calendar year in which the expense was incurred; and (iv) the Employee’s entitlement to reimbursement shall not be subject to liquidation or exchange for another benefit. (c) With regard to any installment payment, each installment thereof shall be deemed a separate payment for purposes of Section 409A of the Code.

Section 409A; Section 280G. (a) To It is the extent applicable, intention of the parties to this Agreement shall be interpreted in accordance that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences to Employee or the Company with regard to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date (collectively, “409A GuidanceSection 409A”). Notwithstanding anything This Agreement shall be interpreted to that end and consistent with that objective. The Company and the Employee shall, to the extent necessary to comply with Section 409A and permitted thereunder, agree to act reasonably and in good faith to mutually reform the provisions of this Agreement to avoid the contraryapplication of the additional tax and interest under Section 409A(a)(1)(B), provided that any such reformation shall not negatively impact the economics of the Company or the Employee hereunder. Notwithstanding any other provision herein, if a payment obligation under this Agreement arises on account of your separation from service while you are Employee is a “specified employee,” (as defined under 409A Guidance)in, and pursuant to, Treasury Regulation Section 1.409A-1(i) or any successor regulation, on the date of termination, no payment of any “deferred compensation” (”, as defined under Treasury Regulation Section 1.409A-1(b)(1)1.409A or any successor regulation, after giving effect shall be made to Employee during the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within period lasting until the earlier of six (6) months after such separation from service shall accrue with interest and shall be paid within fifteen (15) days after the end of the six-month period beginning on the date of termination or upon Employee’s death. If any payment to Employee is delayed pursuant to the foregoing sentence, such separation from service payment instead shall be made on the first business day following the expiration of the six (6) month period referred to in the prior sentence or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of your estate following your death. For purposes of the preceding sentence, interest shall accrue at the prime rate of interest plus five percent (5%), as published in the northeast edition case of The Wall Street Journal on the date of your separation from serviceEmployee’s death, promptly thereafter. The Company shall consult with you Except as otherwise specifically provided in good faith regarding the implementation of this Section 3; provided, that neither the Company nor any of its Subsidiaries, nor any of their respective directors, employees or representatives shall have any liability to you with respect to such implementation provided such implementation is done in good faith. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to you under this Agreement. The Company shall not be liable , if any reimbursement to you for any payment made which the Employee is entitled under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in gross income under Section 409A of the Code. For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement mean, for purposes of any payments under this Agreement that are payments of would constitute deferred compensation subject to Section 409A of the Code, your “separation from service” the following additional rules shall apply: (i) the reimbursable expense must have been incurred, except as defined otherwise expressly provided in this Agreement, during the term of this Agreement; (ii) the amount of expenses eligible for reimbursement during any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year; (iii) the reimbursement shall be made not later than December 31 of the calendar year following the calendar year in which the expense was incurred; and (iv) the Employee’s entitlement to reimbursement shall not be subject to liquidation or exchange for another benefit. With regard to any installment payment, each installment thereof shall be deemed a separate payment for purposes of Section 409A of the Code.

Section 409A; Section 280G. (a) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date (collectively, “409A Guidance”). Notwithstanding anything Anything in this Agreement to the contrarycontrary notwithstanding, if a payment obligation under this Agreement arises on account at the time of your the Executive’s separation from service while you are a “specified employee” (as defined under 409A Guidance), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to within the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue with interest and shall be paid within fifteen (15) days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of your estate following your death. For purposes of the preceding sentence, interest shall accrue at the prime rate of interest plus five percent (5%), as published in the northeast edition of The Wall Street Journal on the date of your separation from service. The Company shall consult with you in good faith regarding the implementation of this Section 3; provided, that neither the Company nor any of its Subsidiaries, nor any of their respective directors, employees or representatives shall have any liability to you with respect to such implementation provided such implementation is done in good faith. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to you under this Agreement. The Company shall not be liable to you for any payment made under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in gross income under Section 409A of the Code. For purposes meaning of Section 409A of the Code, the right Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to a series of installment payments the extent any payment or benefit that the Executive becomes entitled to under this Agreement would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be treated payable in accordance with their original schedule. (b) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a right to a series manner so that all payments hereunder comply with Section 409A of separate paymentsthe Code. “Termination of employment,” “resignation,” or words of similar importThe parties agree that this Agreement may be amended, as used reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (c) The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement mean, for purposes of any payments under this Agreement that are payments of determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. (e) In the event that the severance and other benefits provided for in this Agreement or otherwise payable or provided to Executive (A) constitute “parachute payments” within the meaning of Section 280G of the Code, your and (B) would be subject to the excise tax imposed by Section 4999 of the Code (the “separation from service” Excise Tax”), then Executive’s benefits shall be either: (i) delivered in full, or (ii) delivered as defined to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 409A 4999 of the Code. (f) Unless the Company and Executive otherwise agree in writing, any determination required under Section 6(e) and (f) shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under Section 6(e) and (f). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by Section 6(e) and (f).

Section 409A; Section 280G. (a) To It is the extent applicable, intention of the parties to this Agreement shall be interpreted in accordance that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences to Employee or the Company with regard to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date (collectively, “409A GuidanceSection 409A”). Notwithstanding anything This Agreement shall be interpreted to that end and consistent with that objective. The Company and the Employee shall, to the extent necessary to comply with Section 409A and permitted thereunder, agree to act reasonably and in good faith to mutually reform the provisions of this Agreement to avoid the contraryapplication of the additional tax and interest under Section 409A(a)(1)(B), provided that any such reformation shall not negatively impact the economics of the Company or the Employee hereunder. Notwithstanding any other provision herein, if a payment obligation under this Agreement arises on account of your separation from service while you are Employee is a “specified employee,” (as defined under 409A Guidance)in, and pursuant to, Treasury Regulation Section 1.409A-1 (i) or any successor regulation, on the date of termination, no payment of any “deferred compensation” (”, as defined under Treasury Regulation Section 1.409A-1(b)(1)1.409A or any successor regulation, after giving effect shall be made to Employee during the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within period lasting until the earlier of six (6) months after such separation from service shall accrue with interest and shall be paid within fifteen (15) days after the end of the six-month period beginning on the date of termination or upon Employee’s death. If any payment to Employee is delayed pursuant to the foregoing sentence, such separation from service payment instead shall be made on the first business day following the expiration of the six (6) month period referred to in the prior sentence or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of your estate following your death. For purposes of the preceding sentence, interest shall accrue at the prime rate of interest plus five percent (5%), as published in the northeast edition case of The Wall Street Journal on the date of your separation from serviceEmployee’s death, promptly thereafter. The Company shall consult with you Except as otherwise specifically provided in good faith regarding the implementation of this Section 3; provided, that neither the Company nor any of its Subsidiaries, nor any of their respective directors, employees or representatives shall have any liability to you with respect to such implementation provided such implementation is done in good faith. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to you under this Agreement. The Company shall not be liable , if any reimbursement to you for any payment made which the Employee is entitled under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in gross income under Section 409A of the Code. For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement mean, for purposes of any payments under this Agreement that are payments of would constitute deferred compensation subject to Section 409A of the Code, your “separation from service” the following additional rules shall apply: (i) the reimbursable expense must have been incurred, except as defined otherwise expressly provided in this Agreement, during the term of this Agreement; (ii) the amount of expenses eligible for reimbursement during any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year; (iii) the reimbursement shall be made not later than December 31 of the calendar year following the calendar year in which the expense was incurred; and (iv) the Employee’s entitlement to reimbursement shall not be subject to liquidation or exchange for another benefit. With regard to any installment payment, each installment thereof shall be deemed a separate payment for purposes of Section 409A of the Code.