Exhibit 10.38
SECTION 409A
AMENDMENT
All payments and benefits provided
to the service provider pursuant to his or her employment,
severance, or other similar agreement (“Agreement”)
shall be interpreted and applied, to the extent permissible by
applicable law, so as to avoid any sanctions under section 409A of
the Internal Revenue Code of 1986 (the
“Code”).
Without limiting the generality of
the foregoing, effective December 31, 2008 the following
provisions shall supersede any conflicting provisions in the
Agreement:
1. In the event the service
provider, pursuant to the provisions of his or her Agreement, is
entitled to receive payment of a bonus, such bonus shall be paid in
the calendar year following the calendar year to which that bonus
relates.
2. Notwithstanding anything in the
Agreement to the contrary or otherwise, except to the extent any
expense, reimbursement or in-kind benefit provided pursuant to the
Agreement does not constitute a “deferral of
compensation” within the meaning of section 409 A of the
Code, and its implementing regulations and guidance, (i) the
amount of expenses eligible for reimbursement or in-kind benefits
provided to the service provider during any calendar year will not
affect the amount of expenses eligible for reimbursement or in-kind
benefits provided to the service provider in any other calendar
year, (ii) the reimbursements for expenses for which the
service provider is entitled to be reimbursed shall be made on or
before the last day of the calendar year following the calendar
year in which the applicable expense is incurred and (iii) the
right to payment
