Common use of Effect of Section 409A Clause in Contracts

Effect of Section 409A. (a) Notwithstanding anything to the contrary contained herein, with respect to payments due to Executive pursuant to Section 4.6(c)(iii)-(iv), 4.9(a)(iii)-(iv), and 4.9(d): (i) any portion of such payments which is subject to Section 409A of the Code, including by reason of such payments exceeding the maximum in Treasury Regulation 1.409A-1(b)(9)(iii) based upon two times the lesser of Executive’s annualized compensation or the limitation set forth in Section 401(a)(17) of the Code, shall not be made until the date which is the earlier of the date of Executive’s death and the date which is six (6) months after the date of separation from service on the Termination Date, and (ii) if the Termination Date occurs in 2008 and if the amount of any payments to be made in 2008 which is subject to Section 409A of the Code exceeds the amount which is subject to Section 409A of the Code which would have been paid in 2008 had this Agreement not been amended by Amendment Number 1, then the amount of such excess shall not be paid until January 2, 2009, on which date such excess amount shall be paid in a lump sum. (b) Notwithstanding anything to the contrary contained herein, in the event that (i) Executive notifies the Company, or the Company notifies Executive, in either case prior to the date on which a payment would otherwise be due under this agreement that Executive (or the Company, as applicable) believe that (x) the operation of this Agreement with respect to any such payment hereunder would fall within the coverage of Section 409A(a)(1) of the IRC and (y) any payment hereunder is to be made on account of IRC Section 409A(a)(2)(A)(i) and Executive is a “specified employee” pursuant to IRC Section 409A(a)(2)(B)(i) then (ii) if Executive’s legal counsel and the Company’s legal counsel, in each case acting reasonably, agree that the foregoing analysis is correct, then such payment shall not be made until the date which is the earlier of the date of Executive’s death and the date which is six (6) months after the date of separation from service (the Termination Date).

Effect of Section 409A. (a) Notwithstanding anything to the contrary contained herein, with respect to payments due to Executive pursuant to Section 4.6(c)(iii)-(iv), 4.9(a)(iii)-(iv4.9(a), and 4.9(d): (i) any portion of such payments which is subject to Section 409A of the Code, including by reason of such payments exceeding the maximum in Treasury Regulation 1.409A-1(b)(9)(iii) based upon two times the lesser of Executive’s annualized compensation or the limitation set forth in Section 401(a)(17) of the Code, shall not be made until the date which is the earlier of the date of Executive’s death and the date which is six (6) months after the date of separation from service on the Termination Date, and (ii) if the Termination Date occurs in 2008 and if the amount of any payments to be made in 2008 which is subject to Section 409A of the Code exceeds the amount which is subject to Section 409A of the Code which would have been paid in 2008 had this Agreement not been amended by Amendment Number 1, then the amount of such excess shall not be paid until January 2, 2009, on which date such excess amount shall be paid in a lump sum. (b) Notwithstanding anything to the contrary contained herein, in the event that (i) Executive notifies the Company, or the Company notifies Executive, in either case prior to the date on which a payment would otherwise be due under this agreement that Executive (or the Company, as applicable) believe that (x) the operation of this Agreement with respect to any such payment hereunder would fall within the coverage of Section 409A(a)(1) of the IRC and (y) any payment hereunder is to be made on account of IRC Section 409A(a)(2)(A)(i) and Executive is a “specified employee” pursuant to IRC Section 409A(a)(2)(B)(i) then (ii) if Executive’s legal counsel and the Company’s legal counsel, in each case acting reasonably, agree that the foregoing analysis is correct, then such payment shall not be made until the date which is the earlier of the date of Executive’s death and the date which is six (6) months after the date of separation from service (the Termination Date).

Effect of Section 409A. (a) It is intended that (1) each installment of the payments provided under this Agreement is a separate “payment” for purposes of Section 409A of the Code, and (2) that the payments satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code provided under of Sections 1.409A-1(b)(4), 1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v) of the Treasury Regulations. Notwithstanding anything to the contrary contained hereinin this Agreement, if the Corporation determines (i) that on the date Executive’s employment with respect the Corporation terminates or at such other time that the Corporation determines to be relevant, Executive is a “specified employee” (as such term is defined under Section 409A of the Code and the Treasury Regulations promulgated thereunder) of the Corporation and (ii) that any payments due to be provided to Executive pursuant to this Agreement are or may become subject to the additional tax under Section 4.6(c)(iii)-(iv409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code if provided at the time otherwise required under this Agreement then such payments shall be delayed until the date that is six months (or such longer period required under Section 409A of the Code, including such period, if applicable, as may be required under Internal Revenue Notice 2010-6) after date of Executive’s “separation from service” (as such term is defined under Section 409A of the Code) with the Corporation, or, if earlier the date of the Executive’s death. Any amounts delayed under this Section 16(a) shall be paid on the first day of the seventh month following the Executive’s termination of employment, or if earlier, the Executive’s death. (b) Notwithstanding any other provision to the contrary, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in Section 409A of the Code and the Treasury Regulations promulgated thereunder) upon or following a termination of employment unless such termination is also a “separation from service” from the Corporation within the meaning of Section 409A of the Code and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this Agreement, references to a “separation,” “termination,” “termination of employment” or like terms shall mean “separation from service.” (c) Notwithstanding any other provision to the contrary, in no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Section 409A of the Code and the Treasury Regulations promulgated thereunder be subject to offset by any other amount unless otherwise permitted by Section 409A of the Code. (d) Notwithstanding any other provision to the contrary, to the extent that any reimbursement (including expense reimbursements), 4.9(a)(iii)-(iv)fringe benefit or other, similar plan or arrangement in which the Executive participates during the term of the Executive’s employment under this Agreement (including, to the extent applicable Section 5(e) above) or thereafter provides for a “deferral of compensation” within the meaning of Section 409A of the Code and 4.9(d): the Treasury Regulations promulgated thereunder, (i) the amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any portion other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), (ii) subject to any shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such payments plan or arrangement must be made on or before the last day of the calendar year following the calendar year in which is the expense was incurred, and (iii) the right to any reimbursement or in-kind benefit may not be subject to liquidation or exchange for another benefit. (e) For the avoidance of doubt, any payment due under this Agreement within a period following the Executive’s termination of employment, death, Disability or other event, shall be made on a date during such period as determined by the Corporation in its sole discretion. (f) This Agreement shall be interpreted in accordance with, and the Corporation and the Executive will use their best efforts to achieve timely compliance with, Section 409A of the Code and the Treasury Regulations and other interpretive guidance promulgated thereunder, including without limitation any such regulations or other guidance that may be issued after the effective date of this Agreement. Notwithstanding any provision of this Agreement to the contrary, in the event that the Corporation determines that any compensation or benefits payable or provided under this Agreement may be subject to Section 409A of the Code, the Corporation may adopt such limited amendments to this Agreement and appropriate policies and procedures, including by reason of such payments exceeding amendments and policies with retroactive effect, that Corporation reasonably determines are necessary or appropriate to (i) exempt the maximum in Treasury Regulation 1.409A-1(b)(9)(iii) based upon two times the lesser of Executive’s annualized compensation or the limitation set forth in Section 401(a)(17) of the Code, shall not be made until the date which is the earlier of the date of Executive’s death and the date which is six (6) months after the date of separation benefits payable under this Agreement from service on the Termination Date, and (ii) if the Termination Date occurs in 2008 and if the amount of any payments to be made in 2008 which is subject to Section 409A of the Code exceeds and/or preserve the amount which is subject intended tax treatment of the compensation and benefits provided with respect to this Agreement or (ii) comply with the requirements of Section 409A of the Code which would have been paid in 2008 had this Agreement not been amended by Amendment Number 1, then the amount of such excess shall not be paid until January 2, 2009, on which date such excess amount shall be paid in a lump sumCode. (b) Notwithstanding anything to the contrary contained herein, in the event that (i) Executive notifies the Company, or the Company notifies Executive, in either case prior to the date on which a payment would otherwise be due under this agreement that Executive (or the Company, as applicable) believe that (x) the operation of this Agreement with respect to any such payment hereunder would fall within the coverage of Section 409A(a)(1) of the IRC and (y) any payment hereunder is to be made on account of IRC Section 409A(a)(2)(A)(i) and Executive is a “specified employee” pursuant to IRC Section 409A(a)(2)(B)(i) then (ii) if Executive’s legal counsel and the Company’s legal counsel, in each case acting reasonably, agree that the foregoing analysis is correct, then such payment shall not be made until the date which is the earlier of the date of Executive’s death and the date which is six (6) months after the date of separation from service (the Termination Date).