Common use of and Treas Clause in Contracts

and Treas. Reg. 1.409A-1(i). Notwithstanding the foregoing, such six month delay of payments shall not apply to any payments or benefits that are not subject to Section 409A, including the following: (a) any severance or other payments that qualify as “short term deferral” payments under Treas. Reg. Section 1.409A-1(b)(4); and (b) any remaining severance or other payments paid after the Employee’s Separation from Service to the extent (i) that the dollar amount of such payments does not exceed two (2) times the lesser of (x) the Employee’s annualized compensation (based on the Employee’s annual rate of pay for the calendar year preceding the calendar year in which the Separation from Service occurs, adjusted to reflect any increase during such calendar year which was expected to continue indefinitely had the Employee’s Separation from Service not occurred) and (y) the maximum amount of compensation that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Internal Revenue Code for the calendar year in which the Separation from Service occurs, and (ii) such severance or other payments are to be made to the Employee no later than the last day of the second calendar year following the calendar year in which the Separation from Service occurs. For purposes of Section 409A, each payment of severance made on a payroll date and each monthly provision of severance benefits under this Agreement shall be treated as a right to a series of separate payments, as defined in Treas. Reg. Section 1.409A-2(b)(2).