CompUSA 2013 Annual Report Download - page 75

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3.3.2
the Operating Income of the Industrial Products Group Business for fiscal years 2017 with respect to the Second
Installment and 2018 with respect to the Third Installment each being at least equal to or greater than $90,000,000
(clauses (3.3.1) and (3.3.2) each being an aspect of the
“
Final Condition
”
to be met for the applicable year).
3.4
Miscellaneous
3.4.1
The headings in this Agreement are inserted for convenience only and shall not affect its construction.
3.4.2
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment,
extension, or re
-
enactment and includes any subordinate legislation for the time being in force made under it.
3.5.3
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
3.5.4
Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
3.5.6
The schedules and annexes to this Agreement form part of (and are incorporated into) into this Agreement.
3.5.7
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
3.5 Section 409A
. No representations or warranties are made regarding the tax implications of the compensation and benefits to
be paid to Employee under this Agreement, including, without limitation, under Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”), and applicable administrative guidance and regulations (“Section 409A”),
if any of the
foregoing are applicable to Employee. It is the intention of the parties hereto that payments under this Agreement be
interpreted to be exempt from or in compliance with Section 409A and accordingly, to the maximum extent permitted, this
Agreement shall be interpreted to be exempt from or in compliance with Section 409A. To the extent any payments of money
or other benefits due to Employee under this Agreement could cause the application of an acceleration or additional tax under
Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant
under Section 409A, or otherwise such payments or other benefits shall be restructured, to the extent possible, in a manner
determined by the Company that does not cause such acceleration or additional tax. All references in this Agreement to the
termination of Employee employment shall mean separation from service within the meaning of Section 409A. With respect to
any payments due to Employee as a result of the termination of employment, if necessary to comply with Section 409A, and if
Employee is deemed on the date of termination to be a “specified employee”
within the meaning of that term under Section
409A, such payments shall be made as follows: (i) no payments shall be made for a six-
month period following the date of
termination and (ii) an amount equal to the aggregate sum that would have been otherwise payable during the initial six-
months period shall be paid in a lump sum six (6) months plus one (1) day following the date of termination. With respect to
any reimbursements under this Agreement, such reimbursement shall be made on or before the last day of Employee’
s taxable
year following the taxable year in which the expense was incurred by Employee. The amount of any expenses eligible for
reimbursement or the amount of any in-
kind benefits provided, as the case may be, under this Agreement during any calendar
year shall not affect the amount of expenses eligible for reimbursement or the amount of any in
-
kind benefits provided during
any other calendar year. The right to reimbursement or to any in-
kind benefit pursuant to this Agreement shall not be subject to
liquidation or exchange for any other benefit. For the avoidance of doubt, any payment due under this Agreement within a
period following the termination of your employment or other event shall be made on a date during such period as determined
by the Company in its sole discretion. Each payment made under this Agreement shall be designated as a “separate payment”
within the meaning of Section 409A.