| 8. | Section 409A. It is intended that (1) each installment of the payments provided under this letter is a separate “payment” for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and (2) that the payments satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulations1.409A-1(b)(4),1.409A-1(b)(9)(iii), and1.409A-1(b)(9)(v). Notwithstanding anything to the contrary in this letter, if the Company determines (i) that on the date your employment with the Company terminates or at such other times that the Company determines to be relevant, you are a “specified employee” (as such term is defined under Treasury Regulation1.409A-1(i)) of the Company and (ii) that any payments to be provided to you pursuant to this letter are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code if provided at the time otherwise required under this letter, then such payments shall be delayed until the date that is six months after the date of your “separation from service” (as such term is defined under Treasury Regulation1.409A-1(h)) with the Company, or, if earlier, the date of your death. Any payments delayed pursuant to this Section shall be made in lump sum on the first day of the seventh month following your “separation from service” (as such term is defined under Treasury Regulation1.409A-1(h)), or, if earlier, the date of your death. In addition, to the extent that any reimbursement, fringe benefit or other, similar plan or arrangement in which you participate during the term of your employment under this letter or thereafter provides for a “deferral of compensation” within the meaning of Section 409A of the Code, (i) the amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), and (ii) subject to any shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred. Notwithstanding any other provision to the contrary, a termination of employment shall not be deemed to have occurred for purposes of any provision of this letter providing for the payment of “deferred compensation” (as such term is defined in Section 409A of the Code and the Treasury Regulations promulgated thereunder) upon or following a termination of employment unless such termination is also a “separation from service” from the Company within the meaning of Section 409A of the Code andSection 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this letter, references to a “separation,” “termination,” “termination of employment” or like terms shall mean “separation from service. |
