Common use of Section 409A Applicability Clause in Contracts

Section 409A Applicability. Notwithstanding any other provision of this Agreement to the contrary, in the case of compensation or benefits provided under Sections 4.2(b)(i) or similar compensation or benefits provided under Section 4.3, if Executive is determined to be a Specified Employee at the time of a Separation From Service and the payment or provision of such compensation is made as a result of the Separation From Service and is properly treated as a deferral of compensation subject to Code Section 409A after taking into account all exclusions applicable to such payment under Section 409A, then no portion of such benefits or other such compensation shall be made before the date that is six (6) months after the Separation Date or, if earlier, the date of death of the Specified Employee. Any compensation which would otherwise be paid within such six (6) month period after the Separation Date shall be paid on the date which is six (6) months and one day after the Separation Date, or the first business day thereafter. Each payment under this Agreement, including each installment of severance under Section 4.2(b)(i), and each payment to be made to Executive under any nonqualified deferred compensation plan (within the meaning of Code Section 409A) maintained by Company in which Executive participates, shall be deemed to be a separate payment for purposes of Code Section 409A. To the extent any reimbursement, payment or indemnification of any expenses or the provision of any in-kind benefits under this Agreement, including Attachment "A", or otherwise is subject to Code Section 409A (after taking into account all exclusions applicable to such reimbursements or payments under Code Section 409A), (i) the amount of such expenses eligible for reimbursement or indemnification or in-kind benefits to be provided during any calendar year shall not affect the amount of such expenses eligible for reimbursement or indemnification or in-kind benefits to be provided in any other calendar year, (ii) reimbursement or indemnification of any such expense shall be made by no later than December 31 of the year next following the calendar year in which such expense is incurred, and (iii) Executive’s right to receive such reimbursements or indemnification or in-kind benefits shall not be subject to liquidation or exchange for another benefit. The provisions and application of this paragraph will be construed and applied in a manner consistent with Code Section 409A and Treasury Regulations or other guidance issued thereunder.

Section 409A Applicability. Notwithstanding any other provision of this Agreement to the contrary, in the case of compensation or benefits provided under Sections 4.2(b)(i) and 4.2(b)(iii) or similar compensation or benefits provided under Section 4.3, if Executive is determined to be a Specified Employee at the time of a Separation From Service and the payment or provision of such compensation is made as a result of the Separation From Service and is properly treated as a deferral of compensation subject to Code Section 409A after taking into account all exclusions applicable to such payment under Section 409A, then no portion of such benefits or other such compensation shall be made before the date that is six (6) months after the Separation Date or, if earlier, the date of death of the Specified Employee. Any compensation which would otherwise be paid within such six (6) month period after the Separation Date shall be paid on the date which is six (6) months and one day after the Separation Date, or the first business day thereafter. Each payment under this Agreement, including each installment of severance under Section 4.2(b)(i), and each payment to be made to Executive under any nonqualified deferred compensation plan (within the meaning of Code Section 409A) maintained by Company in which Executive participates, shall be deemed to be a separate payment for purposes of Code Section 409A. To the extent any reimbursement, payment or indemnification of any expenses or the provision of any in-kind benefits under this Agreement, including Attachment "A", or otherwise is subject to Code Section 409A (after taking into account all exclusions applicable to such reimbursements or payments under Code Section 409A), (i) the amount of such expenses eligible for reimbursement or indemnification or in-kind benefits to be provided during any calendar year shall not affect the amount of such expenses eligible for reimbursement or indemnification or in-kind benefits to be provided in any other calendar year, (ii) reimbursement or indemnification of any such expense shall be made by no later than December 31 of the year next following the calendar year in which such expense is incurred, and (iii) Executive’s right to receive such reimbursements or indemnification or in-kind benefits shall not be subject to liquidation or exchange for another benefit. The provisions and application of this paragraph will be construed and applied in a manner consistent with Code Section 409A and Treasury Regulations or other guidance issued thereunder.

Section 409A Applicability. Notwithstanding any other provision of this Agreement to the contrary, in the case of compensation or benefits provided under Sections 4.2(b)(i) and 4.2(b)(iii) or similar compensation or benefits provided under Section 4.34.3(a), if the Executive is determined to be a Specified Employee at the time of a Separation From Service and the payment or provision of such compensation is made as a result of the Separation From Service and is properly treated as a deferral of compensation subject to Code Section 409A after taking into account all exclusions applicable to such payment under Section 409A, then no portion of such benefits or other such compensation shall be made before the date that is six (6) months after the Separation Date or, if earlier, the date of death of the Specified Employee. Any compensation which would otherwise be paid within such six (6) month period after the Separation Date shall be paid on the date which is six (6) months and one day after the Separation Date, or the first business day thereafter. Each payment under this Agreement, including each installment of severance under Section 4.2(b)(i), and each payment to be made to Executive under any nonqualified deferred compensation plan (within the meaning of Code Section 409A) maintained by Company in which Executive participates, shall be deemed to be a separate payment for purposes of Code Section 409A. To the extent any reimbursement, payment or indemnification of any expenses or the provision of any in-kind benefits under this Agreement, including Attachment "A", or otherwise is subject to Code Section 409A (after taking into account all exclusions applicable to such reimbursements or payments under Code Section 409A), (i) the amount of such expenses eligible for reimbursement or indemnification or in-kind benefits to be provided during any calendar year shall not affect the amount of such expenses eligible for reimbursement or indemnification or in-kind benefits to be provided in any other calendar year, (ii) reimbursement or indemnification of any such expense shall be made by no later than December 31 of the year next following the calendar year in which such expense is incurred, and (iii) Executive’s right to receive such reimbursements or indemnification or in-kind benefits shall not be subject to liquidation or exchange for another benefit. The provisions and application of this paragraph will be construed and applied in a manner consistent with Code Section 409A and Treasury Regulations or other guidance issued thereunder.