Common use of Section 409A of the Code Clause in Contracts

Section 409A of the Code. This Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions shall not be imposed. The Executive shall be solely responsible for any tax imposed under section 409A of the Code and in no event shall the Corporation have any liability with respect to any tax, interest or other penalty imposed under section 409A of the Code. For purposes of section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon the Executive’s “separation from service” (within the meaning of such term under section 409A of the Code). In no event shall the Executive, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that: (i) any reimbursement shall be for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.

Section 409A of the Code. This Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions shall not be imposed. The Executive Employee shall be solely responsible for any tax imposed under section 409A of the Code and in no event shall the Corporation Company have any liability with respect to any tax, interest or other penalty imposed under section 409A of the Code. For purposes of section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon the ExecutiveEmployee’s “separation from service” (within the meaning of such term under section 409A of the Code). ) In no event shall the ExecutiveEmployee, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that: that (i) any reimbursement shall be for expenses incurred during the ExecutiveEmployee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the last day of the calendar year following the year in which the expense is incurred incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.

Section 409A of the Code. This Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions shall not be imposed. The Executive Employee shall be solely responsible for any tax imposed under section 409A of the Code and in no event shall the Corporation Company have any liability with respect to any tax, interest or other penalty imposed under section 409A of the Code. For purposes of section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon the ExecutiveEmployee’s “separation from service” (within the meaning of such term under section 409A of the Code). In no event shall the ExecutiveEmployee, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that: that (i) any reimbursement shall be for expenses incurred during the ExecutiveEmployee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the last day of the calendar year following the year in which the expense is incurred incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.

Section 409A of the Code. This Notwithstanding any provision to the contrary, all provisions of this Agreement shall be construed and interpreted to avoid comply with Section 409A and the applicable Treasury Regulations thereunder and if necessary, any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment provision shall be provided in full at held null and void to the earliest time thereafter when extent such sanctions shall not be imposed. The Executive shall be solely responsible for any tax imposed under section provision (or part thereof) fails to comply with Section 409A of or the Code and in no event shall the Corporation have any liability with respect to any tax, interest or other penalty imposed under section 409A of the CodeTreasury Regulations thereunder. For purposes of section 409A the limitations on nonqualified deferred compensation under Section 409A, each payment of the Code, all payments to be made upon a termination of employment compensation under this Agreement may only shall be made upon treated as a separate payment of compensation for purposes of applying the Executive’s “separation from service” (within deferral election rules and the meaning of such exclusion for certain short-term deferral amounts under section 409A of the Code). In no event shall the Executive, directly Section 409A. Any reimbursements or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in in-kind benefits provided under this Agreement that are subject to Section 409A shall be made or provided in accordance with the requirements of section 409A of the CodeSection 409A, including, where applicable, the requirement that: that (i) any reimbursement shall be is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this the Agreement), (ii) the amount of expenses eligible for reimbursement, or in in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall will be made on or before no later than the last day of the calendar year following the year in which the expense is incurred incurred, and (iv) the right to reimbursement or in in-kind benefits is not subject to liquidation or exchange for another benefit.

Section 409A of the Code. This Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions shall not be imposed. The Executive EXECUTIVE shall be solely responsible for any tax imposed under section 409A of the Code and in no event shall the Corporation COMPANY or the BANK have any liability with respect to any tax, interest or other penalty imposed under section 409A of the Code. For purposes of section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon the Executive’s “EXECUTIVE'S "separation from service” " (within the meaning of such term under as defined by section 409A of the CodeCode and the regulations promulgated thereunder). In no event shall the ExecutiveEXECUTIVE, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that: (i) any reimbursement shall be for expenses incurred during the Executive’s EXECUTIVE'S lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.

Section 409A of the Code. This It is intended that this Agreement shall comply with the provisions of Section 409A of the Code and the Treasury regulations relating thereto, or an exemption to Section 409A of the Code, and payments, rights and benefits may only be interpreted made, satisfied or provided under this Agreement upon an event and in a manner permitted by Section 409A of the Code, to avoid any penalty sanctions the extent applicable, so as not to subject Executive to the payment of taxes and interest under section Section 409A of the Code. If In furtherance of this intent, this Agreement shall be interpreted, operated and administered in a manner consistent with these intentions. Terms defined in this Agreement shall have the meanings given to such terms under Section 409A of the Code if and to the extent required in order to comply with Section 409A of the Code. No payments to be made under this Agreement may be accelerated or deferred except as specifically permitted under Section 409A of the Code. To the extent that any regulations or other guidance issued under Section 409A of the Code would result in the Executive being subject to payment of additional income taxes or benefit cannot be provided or made at the time specified herein without incurring sanctions interest under section Section 409A of the Code, then the parties agree to amend this Agreement to maintain to the maximum extent practicable the original intent of this Agreement while avoiding the application of such benefit taxes or payment shall be provided in full at the earliest time thereafter when such sanctions shall not be imposed. The Executive shall be solely responsible for any tax imposed interest under section 409A of the Code and in no event shall the Corporation have any liability with respect to any tax, interest or other penalty imposed under section Section 409A of the Code. Any payments that qualify for the “short-term deferral” exception or another exception under Section 409A of the Code shall be paid under the applicable exception. For purposes of section the limitations on nonqualified deferred compensation under Section 409A of the Code, all payments to be made upon a termination each payment of employment compensation under this Agreement may only shall be made upon treated as a separate payment of compensation for purposes of applying the Executive’s “separation from service” (within the meaning of such term under section Section 409A of the Code)Code deferral election rules and the exclusion under Section 409A of the Code for certain short-term deferral amounts. In no event shall may the Executive, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in kind benefits provided any payment under this Agreement shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that: (i) any reimbursement shall be for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.

Section 409A of the Code. This (i) It is the parties’ intention that this Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided result in full at the earliest time thereafter when such sanctions shall not be imposed. The Executive shall be solely responsible for any tax being imposed under section Section 409A of the Code and in no event the case of any ambiguity the Agreement shall be construed in such manner. (ii) A termination of employment shall not be deemed to have occurred for purposes of this Agreement providing for the Corporation have payment of any liability with respect amounts or benefits subject to any tax, interest or other penalty imposed under section Section 409A of the Code. For purposes of section 409A of the Code, all payments to be made Code upon or following a termination of employment under this Agreement may only be made upon the Executive’s unless such termination is also a “separation from service” (within the meaning of such term under section Section 409A of the Code). In no event Code and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall the Executive, directly mean “separation from service.” (iii) (A) All expenses or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All other reimbursements and in kind benefits provided under this Agreement herein shall be made or provided payable in accordance with the requirements of section 409A Company’s policies in effect from time to time, but in any event shall be made on or prior to the last day of the Code, including, where applicable, taxable year following the requirement that: (i) any reimbursement shall be for taxable year in which such expenses were incurred during the by Executive’s lifetime (or during a shorter period of time specified in this Agreement), (iiB) the amount of no such reimbursement or expenses eligible for reimbursement, or reimbursement in kind benefits provided, during a calendar any taxable year may not shall in any way affect the expenses eligible for reimbursement, or in kind benefits to be provided, reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the last day of the calendar taxable year following the year in which the expense is incurred and (ivC) the right to reimbursement or in in-kind benefits is shall not be subject to liquidation or exchange exchanged for another benefit. (iv) For purposes of Section 409A of the Code, Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.

Section 409A of the Code. This Notwithstanding anything contained in this Agreement to the contrary, to the maximum extent permitted by applicable law, amounts payable to Executive pursuant to this Agreement shall be made in reliance upon Treas. Reg. Section 1.409A- 1(b)(9) (Separation Pay Plans) or Treas. Reg. Section 1.409A-1(b)(4) (Short-Term Deferrals). This Agreement is intended to be written, administered, interpreted to avoid any penalty sanctions under section 409A of the Code. If any and construed in a manner such that no payment or benefit canbenefits provided under the Agreement become subject to (a) the gross income inclusion set forth within Code Section 409A(a)(1)(A) or (b) the interest and additional tax set forth within Code Section 409A(a)(1)(B) (together, referred to herein as the “Section 409A Penalties”), including, where appropriate, the construction of defined terms to have meanings that would not be provided or made at cause the time specified herein without incurring sanctions under section imposition of Section 409A Penalties. To the extent that any amount payable to Executive pursuant to this Agreement is subject to Section 409A of the Code, then and Executive or the Bank reasonably believes, at any time, that such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions shall amount payable does not be imposed. The Executive shall be solely responsible for any tax imposed under section 409A of the Code and in no event shall the Corporation have any liability comply with respect to any tax, interest or other penalty imposed under section 409A of the Code. For purposes of section Section 409A of the Code, all payments it will promptly advise the other and each party hereby agrees to be made upon a termination negotiate reasonably and in good faith to amend the terms of employment under this Agreement may only be made upon the such that it so complies. For purposes of this Agreement, all references to Executive’s “separation termination of employment” shall mean Executive’s Separation from service” (within the meaning Service. For purposes of such term under section Section 409A of the CodeCode (including, without limitation, for purposes of Treasury Regulation Section 1.409A- 2(b)(2)(iii). In no event shall the Executive), directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in kind benefits provided each payment that Executive may be eligible to receive under this Agreement shall be made or provided in accordance with treated as a separate and distinct payment. Notwithstanding anything to the requirements of section 409A of the Code, including, where applicable, the requirement that: (i) any reimbursement shall be for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified contrary in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in in-kind benefits provided, and reimbursements provided under this Agreement during a calendar any tax year may of Executive shall not affect the expenses eligible for reimbursement, or in in-kind benefits or reimbursements to be provided, provided in any other calendar year, (iii) the reimbursement tax year of an eligible expense shall be made on or before the last day of the calendar year following the year in which the expense is incurred Executive and (iv) the right to reimbursement or in kind benefits is are not subject to liquidation or exchange for another benefit. Notwithstanding anything to the contrary in this Agreement, reimbursement requests must be timely submitted by Executive and, if timely submitted, reimbursement payments shall be made to Executive as soon as administratively practicable following such submission, but in no event later than the last day of Executive’s taxable year following the taxable year in which the expense was incurred. In no event shall Executive be entitled to any reimbursement payments after the last day of Executive’s taxable year following the taxable year in which the expense was incurred. This section shall only apply to in-kind benefits and reimbursements that would result in taxable compensation income to Executive.

Section 409A of the Code. This (a) Notwithstanding the other provisions hereof, this Agreement is intended to comply with the requirements of section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) to the extent applicable, and this Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment Accordingly, all provisions herein, or benefit cannot incorporated by reference, shall be provided or made at the time specified herein without incurring sanctions under construed and interpreted to comply with section 409A of the CodeCode and, then if necessary, any such benefit or payment provision shall be provided in full at the earliest time thereafter when such sanctions shall not be imposed. The Executive shall be solely responsible for any tax imposed under deemed amended to comply with section 409A of the Code and in no event shall the Corporation have any liability with respect to any tax, interest or other penalty imposed under section 409A of the Coderegulations thereunder. For purposes of section 409A of the Code, all payments to be each payment made upon a termination of employment under this Agreement may only shall be made upon the Executive’s “separation from service” (within the meaning of such term under section 409A of the Code)treated as a separate payment. In no event shall the Executivewill I, directly or indirectly, be permitted to designate the calendar year of payment, except as permitted under section 409A of the Code. . (b) All reimbursements and in kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that: that (i) any reimbursement shall be is for expenses incurred during the Executive’s my lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, reimbursement during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense shall will be made on or before the last day of the calendar taxable year following the year in which the expense is incurred incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.

Section 409A of the Code. This Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions shall not be imposed. The Executive EXECUTIVE shall be solely responsible for any tax imposed under section 409A of the Code and in no event shall the Corporation Company or the BANK have any liability with respect to any tax, interest or other penalty imposed under section 409A of the Code. For purposes of section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon the Executive’s “EXECUTIVE'S "separation from service” " (within the meaning of such term under as defined by section 409A of the CodeCode and the regulations promulgated thereunder). In no event shall the ExecutiveEXECUTIVE, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that: (i) any reimbursement shall be for expenses incurred during the Executive’s EXECUTIVE'S lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.

Section 409A of the Code. This Agreement shall be interpreted is intended to avoid any penalty sanctions under comply with section 409A of the CodeCode and its corresponding regulations, to the extent applicable, and shall be so construed. If any payment or benefit cannot Notwithstanding anything in this Agreement to the contrary, payments may only be provided or made at the time specified herein without incurring sanctions under this Agreement upon an event and in a manner permitted by section 409A of the Code, then such benefit or payment shall be provided in full at to the earliest time thereafter when such sanctions shall not be imposed. The Executive shall be solely responsible for any tax imposed under section 409A of the Code and in no event shall the Corporation have any liability with respect to any tax, interest or other penalty imposed under section 409A of the Codeextent applicable. For purposes of section 409A of the Code, all payments to be made upon a the termination of the Executive’s employment under this Agreement may only be made upon the Executive’s a “separation from service” (within the meaning of such term under section 409A of the Code), each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall the Executive, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of section Section 409A of the Code, including, where applicable, the requirement that: that (i) any reimbursement shall be is for expenses incurred during the Executive’s lifetime Term (or during a shorter such other time period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, reimbursement during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense shall will be made on or before the last day of the calendar taxable year following the year in which the expense is incurred incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. Nothing herein shall be construed as having modified the time and form of payment of any amounts or payments of “deferred compensation” within the meaning section 409A of the Code that were otherwise payable pursuant to the terms of any agreement between Company and the Executive in effect on or after January 1, 2005 and prior to the date of this Agreement.

Section 409A of the Code. This It is the parties’ intent that the payments and benefits provided under this Letter Agreement shall be exempt from, or comply with, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and this Letter Agreement will be interpreted to avoid any penalty sanctions accordingly. In this regard each payment under section this Letter Agreement will be treated as a separate payment for purposes of Section 409A of the Code. If and to the extent that any payment or benefit canis determined by the Company (1) to constitute “non-qualified deferred compensation” subject to Section 409A of the Code and (2) such payment or benefit must be delayed for six months following your separation from service in order to comply with Section 409A(a)(2)(B)(i) of the Code and not be provided or made at the time specified herein without incurring sanctions cause you to incur any additional tax under section Section 409A of the Code, then the Company will delay making any such payment or providing such benefit or payment shall be provided in full at until the earliest time thereafter when such sanctions shall not be imposed. The Executive shall be solely responsible for any tax imposed under section 409A of the Code and in no event shall the Corporation have any liability with respect to any tax, interest or other penalty imposed under section 409A of the Code. For purposes of section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon the Executive’s “separation from service” (within the meaning expiration of such six-month period (or, if earlier, your death or a “change in control event” as such term under section 409A is defined in Section 1.409A-3(i)(5) of the Code). In no event shall the Executive, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in in-kind benefits provided under this Letter Agreement shall will be made or provided in accordance with the requirements of section Section 409A of the Code, including, where applicable, the requirement that: that (i) any reimbursement shall be for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in in-kind benefits to be provided, in any other calendar year, year (except that a plan providing health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid); (ii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit; and (iii) the any reimbursement of an eligible expense shall must be made on or before the last day of the calendar year following the calendar year in which the expense is incurred and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefitwas incurred.

Section 409A of the Code. This Agreement shall be interpreted is intended to avoid any penalty sanctions under comply with section 409A of the CodeCode and its corresponding regulations, to the extent applicable. If any payment or benefit cannot Notwithstanding anything in this Agreement to the contrary, payments may only be provided or made at the time specified herein without incurring sanctions under this Agreement upon an event and in a manner permitted by section 409A of the Code, then such benefit or payment shall be provided in full at to the earliest time thereafter when such sanctions shall not be imposedextent applicable. The Executive shall be solely responsible for any tax imposed under section 409A of the Code and in no event shall the Corporation have any liability with respect to any tax, interest or other penalty imposed under section 409A of the Code. For purposes of section 409A of the Code, all All payments to be made upon a Employee's termination of employment under this Agreement may only be made upon the Executive’s “a `separation from service” (within the meaning of such term under ' as provided in section 409A of the Code). In no event shall the Executivemay Employee, directly or indirectly, designate the calendar year of payment, except as permitted under section 409A of the Code. All reimbursements and in in-kind benefits provided under this the Agreement shall be made or provided in accordance with the requirements of section 409A of the Code, including, where applicable, the requirement that: that (i) any reimbursement shall be for expenses incurred during the Executive’s Employee's lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense shall will be made on or before the last day of the calendar year following the year in which the expense is incurred incurred, and (iv) the right to reimbursement or in in-kind benefits is not subject to liquidation or exchange for another benefit." 10. In all respects not amended, the Employment Agreement is hereby ratified and confirmed. 11. This Amendment No. 1 shall be effective as of December 12, 2007.