definiens: ( as such term isdefined in Section 409A(d)(1 ) of the Code ) subject to ( and not exempt from ) Section 409A of the Code ( or any statelaw equivalent ) and the regulations and guidance thereunder ( ) has been at all times been in operationalcompliance with Section 409A and at all times since the Company ’s incorporation in documentary compliance withSection 409A. No nonqualified deferred compensation plan that was originally exempt from application of Section409A has been ( within the meaning of IRS Notice 2005 - 1 ) at any time . No compensation shall beincludable in the gross income of any Employee as a result of the operation of Section 409A with respect to anyCompany Employee Plan or other arrangements or agreements which is or has been in effect at any time prior to theFirst Effective Time . To the extent required, the Company and each of its Subsidiaries have properly reported and / orwithheld and remitted on amounts deferred under any nonqualified deferred compensation plan subject to Section409A. There is no Contract, agreement, plan or arrangement to which the Company or any of its ERISA Affiliates is aparty, including the provisions of this Agreement, covering any Employee of the Company or any of its Subsidiaries, which individually or collectively could require the Company or any of its Affiliates to pay a Tax gross - up payment to, or otherwise indemnify or reimburse, any Employee for Tax - related payments under Section 409A. There is noContract, agreement, plan or arrangement to which the Company or any of its Subsidiaries is a party, which, individually or collectively, could give rise to a Parent, the Company, Surviving Corporation, or Subsidiary Tax underSection 409A or that would give rise to an Employee Tax and/or Parent, the Company, Surviving Corporation orSubsidiary reporting obligations under Section 409A