Section 409A Delay in Payment. Notwithstanding any other provision of this paragraph 5 to the contrary, if Executive is a “specified employee” within the meaning of section 409A of the Code, payments and benefits that would otherwise be paid or provided during the six month period commencing on the Termination Date will be deferred until the first day of the seventh month following the Termination Date if such deferral is necessary to avoid the additional tax under section 409A of the Code. In the case of a series of payments, the first payment shall include the amounts Executive would have been entitled to receive during the six month waiting period. Any such determination shall be made in the reasonable judgment of the Company after consultation with Executive. Notwithstanding any other provision of this Agreement, Executive shall automatically cease to be an officer of the Parent, the Company and their respective affiliates as of Executive’s Termination Date and, to the extent permitted by applicable law, any and all monies that Executive owes to the Company shall be repaid to the extent possible, through deduction of such amounts from any post-termination payments owed to Executive pursuant to this Agreement. Notwithstanding any other provision of this Agreement, the Company may suspend Executive from performing Executive’s duties under this Agreement; provided, however, that during the period of suspension (which shall end no later than Executive’s Termination Date), Executive shall continue to be treated as an employee of the Company for other purposes, and Executive’s rights to compensation or benefits hereunder shall be in effect. Other than as expressly provided in paragraphs 5(c) and (d), post-termination benefits may not be suspended or not paid; provided, however, that notwithstanding anything contained in this Agreement to the contrary, no payments or benefits (including without limitation, vesting of any and all stock options, shares of restricted stock, restricted stock units and other unvested incentive awards) payable to Executive under this paragraph 5 (except for payments and benefits provided by 5(a)(i) – (iv)) shall be paid to Executive unless he executes a general release of claims against the Company and its affiliates in the form set forth in Exhibit C to this Agreement (the “Release”), and such Release becomes effective and is not revoked.
Section 409A Delay in Payment. Notwithstanding anything in this Agreement to the contrary, if at the time of Executive’s termination of employment with the Employer, Executive is a “specified employee,” as defined in Section 409A of the Code, and the deferral of the commencement of any severance benefits otherwise payable under this Agreement as a result of such termination of employment is necessary in order to avoid the additional tax under Section 409A of the Code, then the Employer will defer the payment of any such severance payments until the date that is six months following Executive’s termination of employment with the Employer (or the earliest date as is permitted under Section 409A of the Code). Any payment deferred pursuant to this Section 7(h) will be accumulated and paid to Executive (without interest) in a lump sum.
Section 409A Delay in Payment. (i) Notwithstanding the foregoing provisions of this Agreement, if a payment under this Agreement is due to a “separation from service” for purposes of the rules under Title 26 of the Code of Federal Regulations (the “Treasury Regulations”) Section 1.409A-3(i)(2) (the “Six Month Delay Rule”) and the Executive is determined to be a “specified employee” (as determined under Treasury Regulation Section 1.409A-1(i) and related Company procedures), such payment shall, to the extent necessary to comply with the requirements of Code Section 409A, be made on the later of the date specified by the foregoing provisions of this Section 7 or the date that is six months after the date of the Executive’s separation from service. If any cash payment is delayed pursuant to this Section 7(f)(i), interest on such delayed payment (determined using the short-term “applicable federal rate” compounded monthly as published by the Internal Revenue Service for the month preceding the Executive’s separation from service) shall accrue and be paid at the same time as the delayed payment.
Section 409A Delay in Payment. Notwithstanding any other provision of this Exhibit A to the contrary, if Executive is a “specified employee” within the meaning of section 409A of the Code, payments and benefits that would otherwise be paid or provided during the six month period commencing on the Termination Date will be deferred until the first day of the seventh month following the Termination Date if such deferral is necessary to avoid the additional tax under section 409A of the Code. In the case of a series of payments, the first payment shall include the amounts Executive would have been entitled to receive during the six month waiting period. Any such determination shall be made in the reasonable judgment of the Company after consultation with Executive. Exhibit B
Section 409A Delay in Payment. Notwithstanding any other provision of this Agreement to the contrary, if any payment hereunder (including any payment made pursuant to any of the Exhibits attached hereto) is subject to section 409A of the Code, if such payment is to be paid on account of Executive’s separation from service (within the meaning of section 409A of the Code) and if Executive is a specified employee (within the meaning of section 409A(a)(2)(B) of the Code), such payment shall be delayed until the first day of the seventh month following Executive’s separation from service (or, if later, the date on which such payment is otherwise to be paid under this Agreement). In the case of a series of payments, the first payment shall include the amounts Executive would have been entitled to receive during the six month waiting period. Any such determination shall be made in the reasonable judgment of the Company after consultation with Executive. For purposes of section 409A of the Code, each installment payment shall be considered a separate payment. To the extent that any installment payments may not be made during the six month period following Executive’s separation from service, such installment payments shall be made in a lump sum payment on the first day of the seventh month following Executive’s separation from service.
Section 409A Delay in Payment. The Company intends that the RSUs shall not constitute “nonqualified deferred compensation” subject to Section 409A and this Agreement shall be interpreted, administered and construed consistent with such intent; provided, however, that if the Grantee is or will become eligible to terminate employment by reason of Retirement on or before the Scheduled Vesting Date, this Award shall constitute “nonqualified deferred compensation” subject to Section 409A once the Grantee becomes eligible to terminate employment by reason of Retirement and, in such case, this Agreement shall be interpreted, administered and construed in a manner consistent with complying with such provisions. To the extent required in order to avoid the imposition of any interest and additional tax under Section 409A, any payments or delivery of RSU Shares payable as a result of the Grantee’s termination of employment with the Company (or any Subsidiary or Affiliate), including, without limitation, pursuant to Section 5(c), will be delayed until the first business day of the seventh month following such termination of employment, or if earlier, the date of the Grantee’s death, if the Grantee is deemed to be a “specified employee” as defined in Section 409A and as determined by the Company. If, and only to the extent that, this Award constitutes “deferred compensation” within the meaning of Section 409A, any delivery of RSU Shares provided for in this Agreement in connection with the Grantee’s termination of employment shall be made to the Grantee only upon a “separation from service” (as such term is defined and used in Section 409A). Each payment under the RSUs shall be treated as a separate payment for purposes of Section 409A.
Section 409A Delay in Payment. If any compensation provided by this Agreement may result in the application of Section 409A of the Code, the Company will, in consultation with the Grantee, modify the Agreement in the least restrictive manner necessary in order to, where applicable, (a) exclude such compensation from the definition of “deferred compensation” within the meaning of such Section 409A or (b) comply with the provisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and to make such modifications, in each case, without any diminution in the value of the payments to the Grantee.
Section 409A Delay in Payment. If any compensation provided by this Agreement may result in the application of Section 409A of the Code, the Company will, in consultation with the Grantee modify the Agreement in the least restrictive manner necessary in order to, where applicable, (a) exclude such compensation from the definition of “deferred compensation” within the meaning of such Section 409A or (b) comply with the provisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and to make such modifications, in each case, without any diminution in the value of the payments to the Grantee. To the extent required in order to avoid the imposition of any interest and additional tax under Section 409A(a)(1)(B) of the Code, any payments or delivery of Shares payable as a result of the Grantee’s termination of employment with the Company (including, without limitation, pursuant to Section 5(c)) will be delayed until the day after the six month anniversary of such termination of employment, or if earlier, the date of the Grantee’s death, if the Grantee is deemed to be a “specified employee” as defined in Section 409A(a)(2)(i)(B) of the Code.
Section 409A Delay in Payment. If any compensation provided by this Agreement may result in the application of Section 409A of the Code, the Company will, in consultation with the Grantee modify the Agreement in the least restrictive manner necessary in order to, where applicable, (a) exclude such compensation from the definition of “deferred compensation” within the meaning of such Section 409A or (b) comply with the provisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and to make such modifications, in each case, without any diminution in the value of the payments to the Grantee. To the extent required in order to avoid the imposition of any interest and additional tax under Section 409A(a)(1)(B) of the Code, any payments or delivery of Shares payable as a result of the Grantee’s termination of employment with the Company (including, without limitation, pursuant to Section 5(c)) will be delayed until the day after the six month anniversary of such termination of employment, or if earlier, the date of the Grantee’s death, if the Grantee is deemed to be a “specified employee” as defined in Section 409A(a)(2)(i)(B) of the Code. The amendments to this Agreement that were adopted by the Committee on September 4, 2007 will not operate to accelerate any payment into 2007 that would not have been made under the Agreement or delay any payment that would have been made in 2007 under this Agreement, in each case, prior to the adoption of such amendments.
Section 409A Delay in Payment. Notwithstanding any other provision of this Exhibit A to the contrary, if Executive is a “specified employee” within the meaning of section 409A of the Code, payments and benefits that would otherwise be paid or provided during the six month period commencing on the Termination Date will be deferred until the first day of the seventh month following the Termination Date if such deferral is necessary to avoid the additional tax under section 409A of the Code. In the case of a series of payments, the first payment shall include the amounts Executive would have been entitled to receive during the six month waiting period. Any such determination shall be made in the reasonable judgment of the Company after consultation with Executive. EXHIBIT B GROSS-UP PAYMENT Subject to the provisions of this Exhibit B, Executive shall be eligible for the benefits described in this Exhibit B, and shall be subject to the terms of this Exhibit B, regardless of whether Executive is employed by the Company on or after the occurrence of a Change in Control and, if Executive’s Termination Date shall have occurred, regardless of the reason for such termination.
