Common use of Application of Section 409A of the Internal Revenue Code Clause in Contracts

Application of Section 409A of the Internal Revenue Code. Notwithstanding anything contained herein (including in Sections 3(D) or 3(F)) to the contrary, if Executive is a “specified employee” within the meaning of Section 1.409A-l(i) of the Treasury Regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code”), as of the Date of Termination, then payments to Executive hereunder shall not be made before the date that is six months after the Date of Termination (or if earlier, the date of death of Executive); provided, however, that during such six-month period, NFM shall make any and all payments contemplated hereunder to the extent such payments do not exceed two times the lesser of (i) Executive’s annualized compensation, based upon the annual rate of compensation for the calendar year preceding the year in which the Date of Termination occurs, or (ii) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(l7) of the Code for the year in which the Date of Termination occurs; and provided further that any amounts deferred hereunder shall be paid in a lump-sum amount at the expiration of such six-month period.

Application of Section 409A of the Internal Revenue Code. Notwithstanding anything contained herein (including in Sections 3(D) or 3(F)) to the contrary, if Executive is a “specified employee” within the meaning of Section 1.409A-l(i) of the Treasury Regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code”), as of the Date of Termination, then payments to Executive hereunder shall not be made before the date that is six months after the Date of Termination (or if earlier, the date of death of Executive); provided, however, that during such six-month period, NFM shall make any and all payments contemplated hereunder to the extent such payments do not exceed two times the lesser of (i) Executive’s annualized compensation, based upon the annual rate of compensation for the calendar year preceding the year in which the Date of Termination occurs, or (ii) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(l7401(a)(l 7) of the Code for the year in which the Date of Termination occurs; and provided further that any amounts deferred hereunder shall be paid in a lump-sum amount at the expiration of such six-month period.