definiens: ( within the meaning of Section 409A(d)(1 ) of the Code)subject to Section 409A of the Code . With respect to each such nonqualified deferred compensation plan, ( i ) suchplan or arrangement has been operated since January 1, 2005 in compliance with Section 409A of the Code and allapplicable IRS guidance promulgated thereunder to the extent such plan or arrangement is subject to Section 409A ofthe Code and so as to avoid any Tax, interest or penalty thereunder ; ( ii ) the document or documents that evidenceeach such plan or arrangement have conformed to the provisions of Section 409A of the Code and the finalregulations under Section 409A of the Code since December 31, 2008 ; and ( iii ) as to any such plan or arrangement inexistence prior to January 1, 2005 and not subject to Section 409A of the Code, has not been ( within the meaning of IRS Notice 2005 - 1 ) at any time after October 3, 2004 . No Company Option ( whether currentlyoutstanding or previously exercised ) is, has been or would be, as applicable, subject to any Tax, penalty or interestunder Section 409A of the Code . There is no Contract, agreement, plan or arrangement to which the Company or anyof its ERISA Affiliates is a party, including the provisions of this Agreement, covering any current or former employee, director or consultant of the Company or its Subsidiaries, which individually or collectively could require the Companyor any of its Affiliates to pay a Tax gross up payment to any current or former employee, director or consultant forTax - related payments under Section 409A of the Code