definiens: within the meaning of Section 409A(d)(1 ) of the Code ( a ) subject toSection 409A of the Code has been operated and maintained since January 1, 2005 in compliance in all materialrespects with Section 409A of the Code and the regulations and other administrative guidance promulgated thereunder(the ) . No Company Plan that would be a Nonqualified Deferred Compensation Plan subject toSection 409A of the Code but for the effective date provisions that are applicable to Section 409A of the Code, as setforth in Section 885(d ) of the American Jobs Creation Act of 2004, as amended ( the ), has been within the meaning of Section 885(d)(2)(B ) of the AJCA after October 3, 2004, based upon a good faithreasonable interpretation of the AJCA and the 409A Authorities and has not been operated in compliance with the409A Authorities after such material modification . No current or former director, officer, employee, contractor orconsultant of the Company or any of its Subsidiaries is entitled to any gross - up, make - whole or other additionalpayment from the Company or any of its Subsidiaries in respect of any Tax ( including Taxes imposed underSection 409A of the Code ) or interest or penalty related thereto