Common use of Separation from Service under Section 409A Clause in Contracts

Separation from Service under Section 409A. The Employee’s termination of employment for all purposes under this agreement will be determined to have occurred in accordance with the “separation from service” requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) and based on whether the facts and circumstances indicate that the Company and the Employee reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Employee would perform after such date (as an employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level of bona fide services performed over the immediately preceding 36-month period. All references hereunder to the Employee’s termination of employment shall conform to this requirement whenever necessary to comply with Code Section 409A. Upon termination of Employee’s employment hereunder in the circumstances described in Sections 8 through 12 below during the Term of Employment, Employee’s last day of employment by the Company shall be referred to herein as the “Termination Date.” The date which is six months and 15 days following an Employee’s Termination Date shall be referred to herein as Employee’s “409A Date.” It is the parties’ intention that the benefits and rights to which the Employee could become entitled in connection with the termination of employment covered under this Agreement comply with Section 409A of the Code. If the Employee or the Company believes, at any time, that any of such benefits or rights do not so comply, he or it shall promptly advise the other party and shall negotiate reasonably and in good faith to amend the terms of such arrangement such that it complies with Section 409A (with the most limited possible economic effect on the Employee and on the Company).

Separation from Service under Section 409A. The Employee’s Notwithstanding any provision to the contrary in this Agreement: (i) no amount that is “nonqualified deferred compensation” subject to Section 409A of the Code shall be payable pursuant to Section 5 unless the termination of the Executive’s employment for all purposes under this agreement will be determined to have occurred in accordance with the constitutes a “separation from service” requirements within the meaning of Section l .409A-l(h) of the Department of Treasury Regulations; (ii) if the Executive is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent that delayed commencement of any portion of the termination benefits to which the Executive is entitled under this Agreement (after taking into account all exclusions applicable to such termination benefits under Section 409A), including, without limitation, any portion of the additional compensation awarded pursuant to Section 5, is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of the Executive’s termination benefits shall not be provided to the Executive prior to the earlier of (A) the expiration of the six-month period measured from the date of the Executive’s “separation from service” with the Company (as such term is defined in the Department of Treasury Regulations issued under Section 409A) and (B) the date of the Executive’s death: provided, that upon the earlier of such dates, all payments deferred pursuant to this Section 11(b)(ii) shall be paid to the Executive in a lump sum, and any remaining payments due under this Agreement shall be paid as otherwise provided herein; (iii) the determination of whether the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall be made by the Company in accordance with the terms of Section 409A of the Internal Revenue Code of 1986and applicable guidance thereunder (including, as amended (“Code”without limitation, Section l.409A-l(i) and based on whether the facts and circumstances indicate that the Company and the Employee reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Employee would perform after such date (as an employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level Department of bona fide services performed over the immediately preceding 36-month period. All references hereunder to the Employee’s termination Treasury Regulations and any successor provision thereto); (iv) for purposes of employment shall conform to this requirement whenever necessary to comply with Code Section 409A. Upon termination of Employee’s employment hereunder in the circumstances described in Sections 8 through 12 below during the Term of Employment, Employee’s last day of employment by the Company shall be referred to herein as the “Termination Date.” The date which is six months and 15 days following an Employee’s Termination Date shall be referred to herein as Employee’s “409A Date.” It is the parties’ intention that the benefits and rights to which the Employee could become entitled in connection with the termination of employment covered under this Agreement comply with Section 409A of the Code. If , the Employee or Executive’s right to receive installment payments pursuant to Section 5 shall be treated as a right to receive a series of separate and distinct payments; (v) if the Company believessixty day period following the Date of Termination ends in the calendar year following the year that includes the Date of Termination, at then payment of any timeamount that is conditioned upon the execution of the Release and is subject to Section 409A shall not be paid until the first day of the calendar year following the year that includes the Date of Termination, regardless of when the Release is signed; and (vi) to the extent that any reimbursement of expenses or in-kind benefits constitutes “deferred compensation” under Section 409A, such reimbursement or benefit shall be provided no later than December 31 of the year following the year in which the expense was incurred . The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year. The right to any benefits or rights do reimbursements or in-kind benefits may not so comply, he be liquidated or it shall promptly advise the exchanged for any other party and shall negotiate reasonably and in good faith to amend the terms of such arrangement such that it complies with Section 409A (with the most limited possible economic effect on the Employee and on the Company)benefit.

Separation from Service under Section 409A. The (a) Employee’s termination of employment for all purposes under this agreement Agreement will be determined to have occurred in accordance with the “separation from service” requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) and based on whether the facts and circumstances indicate that the Company and the Employee reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Employee would perform after such date (as an employee or as an independent contractor) would permanently decrease to no more than 20 percent (20%) of the average level of bona fide services performed over the immediately preceding 36-month period. All references hereunder to the Employee’s termination of employment shall conform to this requirement whenever necessary to comply with Code Section 409A. 409A of the Code. (b) Upon termination of Employee’s employment hereunder in the circumstances described in Sections 8 through 12 below during the Term of Employment, Employee’s last day of employment by the Company shall be referred to herein as the “Termination Date.” The date which is six months and 15 days following an Employee’s Termination Date shall be referred to herein as Employee’s “409A Date.” ” (c) It is the parties’ intention that the benefits and rights to which the Employee could become entitled in connection with the termination of employment covered under this Agreement comply with Section 409A of the Code. If the Employee or the Company believes, at any time, that any of such benefits or rights do not so comply, he or it shall promptly advise the other party and shall negotiate reasonably and in good faith to amend the terms of such arrangement such that it complies with Section 409A of the Code (with the most limited possible economic effect on the Employee and on the Company).

Separation from Service under Section 409A. The Employee’s Notwithstanding any provision to the contrary in this Agreement, (i) no amount payable pursuant to Section 5 that constitutes “deferred compensation” subject to Section 409A of the Code that is payable upon a termination of employment for all purposes under this agreement will hereunder shall be determined to have occurred in accordance with paid unless the termination of the Executive’s employment constitutes a “separation from service” requirements within the meaning of Section 1.409A-1(h) of the Department of Treasury Regulations; (ii) if the Executive is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent that delayed commencement of any portion of the termination benefits to which the Executive is entitled under this Agreement (after taking into account all exclusions applicable to such termination benefits under Section 409A of the Code), including, without limitation, any portion of the additional compensation awarded pursuant to Section 5, is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of the Executive’s termination benefits shall not be provided to the Executive prior to the earlier of (A) the expiration of the six-month period measured from the date of the Executive’s “separation from service” with the Company (as such term is defined in the Department of Treasury Regulations issued under Section 409A of the Code) and (B) the date of the Executive’s death; provided, that upon the earlier of such dates, all payments deferred pursuant to this Section 11(b)(ii) shall be paid to the Executive in a lump sum, and any remaining payments due under this Agreement shall be paid as otherwise provided herein; (iii) the determination of whether the Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall be made by the Company in accordance with the terms of Section 409A of the Internal Revenue Code of 1986and applicable guidance thereunder (including, as amended (“Code”without limitation, Section 1.409A-1(i) and based on whether the facts and circumstances indicate that the Company and the Employee reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Employee would perform after such date (as an employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level Department of bona fide services performed over the immediately preceding 36-month period. All references hereunder to the Employee’s termination Treasury Regulations and any successor provision thereto); (iv) for purposes of employment shall conform to this requirement whenever necessary to comply with Code Section 409A. Upon termination of Employee’s employment hereunder in the circumstances described in Sections 8 through 12 below during the Term of Employment, Employee’s last day of employment by the Company shall be referred to herein as the “Termination Date.” The date which is six months and 15 days following an Employee’s Termination Date shall be referred to herein as Employee’s “409A Date.” It is the parties’ intention that the benefits and rights to which the Employee could become entitled in connection with the termination of employment covered under this Agreement comply with Section 409A of the Code. If , the Employee or Executive’s right to receive installment payments pursuant to Section 5 shall be treated as a right to receive a series of separate and distinct payments; and (v) to the Company believes, at any time, extent that any reimbursement of expenses or in-kind benefits constitutes “deferred compensation” under Section 409A, such reimbursement or benefit shall be provided no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits or rights do provided in one year shall not so comply, he or it shall promptly advise affect the amount of in-kind benefits provided in any other party and shall negotiate reasonably and in good faith to amend the terms of such arrangement such that it complies with Section 409A (with the most limited possible economic effect on the Employee and on the Company)year.