Application of Section 409a Contract Clauses (71)

Application of Section 409a. It is intended that all of the Severance Benefits payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code of 1986, as amended ("Code") and the regulations and other guidance thereunder and any state law of similar effect (collectively, "Section 409A") provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that is so exempt from ...Section 409A. If not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A, and incorporates by reference all required definitions and payment terms. In the event that the terms of this Agreement would subject Employee to any additional tax, penalty or interest under Section 409A (the "409A Penalties"), the Company and Executive shall cooperate in good faith to amend the terms of this Agreement to avoid such 409A Penalties, if possible, while preserving the intended economic effects of the Agreement to the greatest extend possible. The preceding provisions shall not be construed as a guarantee by the Company of any particular tax effect to Employee under this Agreement. The Company shall not be liable to Employee for any payment made under this Agreement which is determined to result in an additional tax, penalty or interest under Section 409A, nor for reporting in good faith any payment as an amount includible in gross income under Section 409A. Notwithstanding anything to the contrary set forth herein, no Severance Benefits that constitute nonqualified deferred compensation not exempt from the application of Section 409A will be made under this Agreement until Employee has incurred a "separation from service" (as defined under Treasury Regulation Section 1.409A-1(h)). For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), Employee's right to receive any installment payments under this Agreement (whether severance payments or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. 5 10. OTHER. Except as expressly provided in this Agreement and except for the Confidentiality Agreement and other agreements related to Employee's equity, this Agreement supersedes all other understandings and agreements, oral or written, between the Parties and constitutes the sole agreement between the Parties with respect to its subject matter. For avoidance of doubt, this Agreement does not supersede the Equity Agreements The Parties acknowledge that no representations, inducements, promises, or agreements, oral or written, have been made by any of the Parties or by anyone acting on behalf of any of the Parties that are not embodied in this Agreement, and no agreement, statement or promise not contained or described in this Agreement shall be valid or binding on the Parties. No change or modification of this Agreement shall be valid or binding on the Parties unless such change or modification is in writing and is signed by the Parties. Employee's or the Company's waiver of any breach of a provision of this Agreement shall not waive any subsequent breach by the other Party. If a court of competent jurisdiction holds that any provision or sub-part thereof contained in this Agreement is invalid, illegal, or unenforceable, that invalidity, illegality, or unenforceability shall not affect any other provision in this Agreement. This Agreement is intended to avoid all litigation relating to Employee's employment with the Company and Employee's separation therefrom; therefore, it is not to be construed as the Company's admission of any liability to Employee – liability that the Company denies. This Agreement shall apply to, be binding upon, and inure to the benefit of the Parties' successors, assigns, heirs, and other representatives and be governed by North Carolina law, without regard to the conflicts of laws principles thereof, and the applicable provisions of federal law. The state and federal courts in North Carolina shall be the exclusive venues for the adjudication of all disputes arising out of this Agreement, and Employee consents to the exercise of personal jurisdiction over Employee in any such adjudication and hereby waives any and all objections and defenses to the exercise of such personal jurisdiction. CAUTION! READ BEFORE SIGNING. THIS AGREEMENT CONTAINS A RELEASE OF ALL CLAIMS. View More

Application of Section 409a. The parties intend that this Agreement and the payments and benefits provided hereunder will comply with, or be exempt from, the application of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance thereunder and any state law of similar effect (collectively, "Section 409A"), and all provisions of this Agreement will be construed, to the maximum extent possible, in a manner consistent with the requirements for avoiding taxes or penalties under Sect...ion 409A. To the extent any payment hereunder due upon the occurrence of your termination of employment constitutes deferred compensation that is subject to Section 409A, and is not otherwise exempt from complying with the provisions of Section 409A, then such payment(s) will not commence unless and until you have also incurred a "separation from service" as such term is defined in Treasury Regulation Section 1.409A-1(h). If the Company determines that to the extent any payment hereunder constitutes "deferred compensation" under Section 409A and you are, on the termination of your employment, a "specified employee" of the Company or any successor entity thereto, as such term is defined in Section 409A, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of such payment will be delayed until the earlier to occur of: (i) the date that is six months and one day after your separation from service, or (ii) the date of your death (such applicable date, the "Specified Employee Initial Payment Date"), and the Company (or the successor entity thereto, as applicable) will (A) pay to you a lump sum amount equal to the sum of the payments that you would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the payments had not been so delayed pursuant to this Section 6. Each installment of any payments provided for in this Agreement is a separate "payment" for purposes of Section 409A. View More

Application of Section 409a. This Agreement and the amounts payable and other benefits hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Tax Code. This Agreement shall be administered, interpreted and construed in a manner consistent with Section 409A. If any provision of this Agreement is found not to comply with, or otherwise not to be exempt from, the provisions of Section 409A, it shall be modified and given effect, in the sole discretion of the Employer's Board or Compensation Comm...ittee and without requiring my consent, in such manner as the Board or Compensation Committee determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A. Each payment under this Agreement shall be treated as a separate identified payment for purposes of Section 409A. The preceding provisions shall not be construed as a guarantee by the Employer of any particular tax effect to me of the payments and other benefits under this Agreement. (a) With respect to any reimbursement of expenses of or any provision of in-kind benefits to me, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (a) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Tax Code; (b) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (c) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit. (b) If a payment obligation under this Agreement is subject to Section 409A, the payment shall be paid only in connection with my "separation from service" (as defined in Treas. Reg. Section 1.409A-1(h)). If a payment obligation under this Agreement arises on account of my "separation from service" (as defined under Treas. Reg. Section 1.409A-1(h)) while I am a "specified employee" (as defined under Treas. Reg. Section 1.409A-1(h)), 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 months after such separation from service shall accrue without interest and shall be paid on the first day of the seventh month beginning after the date of my separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of my estate following my death. 8 25. Acknowledgment. I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA. I also acknowledge that the consideration given under the Agreement for the waiver and release is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A) my waiver and release do not apply to any rights or claims that may arise on or after the date I execute this Agreement; (B) I have the right to consult with an attorney prior to executing this Agreement; (C) I have twenty-one (21) days to consider this Agreement (although I may choose to voluntarily execute this Agreement earlier); (D) I have seven (7) days following my execution of this Agreement to revoke the Agreement by providing a written notice of revocation to Stanley J. Olander, the Employer's Chief Executive Officer; and (E) this Agreement shall not be effective until the date upon which the revocation period has expired, which shall be the eighth (8th) day after I execute this Agreement (provided that I do not revoke it). Notwithstanding the foregoing, the Parties agree that any revisions or modifications to this Agreement, whether material or immaterial, will not and did not restart the time periods contemplated by this Section 25. View More