definiens: ( within the meaning of Section 409A(d)(1)of the Code ) has been operated in good faith compliance since January 1, 2005 and in material compliance since January 1,2009, in each case, with Section 409A of the Code and the then applicable guidance issued by the Internal Revenue Servicethereunder ( together, the ) . No payment pursuant to any Benefit Plan or other arrangement to any ( as such term is defined under the 409A Authorities ) would subject any Person to tax pursuant to Section 409A(1 ) ofthe Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the transactionscontemplated hereby ( either alone or upon the occurrence of any additional or subsequent events ) or otherwise . All CompanyOptions that have been granted to any person who is subject to taxation in the United States upon the exercise of theCompany Options have been granted or issued at an exercise price equal to the fair market value of the underlying CommonStock at the date of grant or issuance, as determined in accordance with applicable Law, including, to the extent applicable, the 409A Authorities