extent not exempt, are intended to comply with the requirements of Section 409A. The
provisions of this letter shall be construed in a manner consistent with such intent.
However, the Company will have no liability to you or any other person if any payment
or benefit under the letter is determined to constitute noncompliant “nonqualified
deferred compensation” under Section 409A.
With respect to any “deferred compensation” within the meaning of Section 409A that is
payable or commences to be payable under this letter solely by reason of your
termination of employment, such amount shall be payable or commence to be payable as
soon as, and no later than, you experience a “separation from service” as defined in
Section 409A, subject to the terms of the following paragraph, if applicable. In addition,
nothing in the letter shall require the Company to, and the Company shall not, accelerate
the payment of any amount that constitutes “deferred compensation” except to the extent
permitted under Section 409A.
Notwithstanding anything to the contrary in this letter, if you are a “specified employee”
within the meaning of Section 409A at the time of your separation from service and any
amounts payable to you by virtue of your separation from service constitute “deferred
compensation” within the meaning of Section 409A (each, as determined by the
Company), any such amounts that otherwise would be payable during the first six months
following your separation from service shall be delayed and accumulated and shall be
paid to you on the earlier of (i) the later of (A) the first business day following the
expiration of the six-month period measured from the date of your separation from
service and (B) the first business day following the expiration of the eighteen-month
period measured from the date the Amendment to this Offer Letter becomes effective and
(ii) as soon as practicable following the date of your death. Any remaining amounts due
to you under this letter will be paid as otherwise provided herein. You understand that in
the event of your separation from service before the first anniversary of the date the
Amendment to this Offer Letter becomes effective, 50% of the amount of any deferred
compensation payable to you hereunder will be subject to additional taxes under Section
409A and the guidance issued thereunder.
Any reimbursements or in-kind benefits provided to you shall be administered in
accordance with Section 409A, such that: (a) the amount of expenses eligible for
reimbursement, or in-kind benefits provided, during one year shall not affect the expenses
eligible for reimbursement or the in-kind benefits provided in any other year; (b)
reimbursement of eligible expenses shall be made on or before December 31 of the year
following the year in which the expense was incurred; and (c) the right to reimbursement
or in-kind benefits shall not be subject to liquidation or to exchange for another benefit.”
