Common use of Section 409A Delay Clause in Contracts

Section 409A Delay. Notwithstanding any provisions of paragraphs 4, 8, 9 and 11 to the contrary, if you are a “specified employee” (within the meaning of Section 409A (or any successor provisions) of the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations promulgated thereunder (“Section 409A”)) at the time of your Separation from Service and if any portion of the payments or benefits to be received by you under paragraphs 4, 8, 9 and 11 upon your Separation from Service would be considered deferred compensation under Section 409A, then the following provisions shall apply to each such portion. a. Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 4, 8, 9 and 11 during the six-month period immediately following your Separation from Service (the “Delayed Period”) shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur a Separation from Service or (ii) your death (the applicable date, the “Permissible Payment Date”). b. Employer shall reimburse you for the reasonable after-tax cost of any benefits, contemplated by paragraphs 8, 9 and 11, incurred by you in independently obtaining such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. With respect to any amount of expenses eligible for reimbursement under paragraphs 8, 9 and 11, such expenses shall be reimbursed by Employer within 60 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer receives the applicable invoice from you (and approves such invoice) but in no event later than December 31 of the year following the year in which you incur the related expenses, or in the case of payment contemplated by paragraph 9(v)(e), December 31st of the year following the year in which the applicable taxes are remitted. d. Any payments delayed under paragraphs 8, 9 and 11 (other than the delayed settlement of equity-based awards subject to Section 409A) as a result of the application of Section 409A shall accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed payment. In no event shall the reimbursements or in-kind benefits to be provided by Employer in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit.

Section 409A Delay. Notwithstanding any provisions of paragraphs 4, 89, 9 10 and 11 12 to the contrary, if you are a “specified employee” (within the meaning of Section 409A (or any successor provisions) of the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations promulgated thereunder (“Section 409A”)) at the time of your Separation from Service Service, and if any portion of the payments or benefits to be received by you under paragraphs 4, 89, 9 10 and 11 12 upon your Separation from Service would be considered deferred compensation under Section 409A, then the following provisions shall apply to each such portion. a. Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 4, 89, 9 10 and 11 12 during the six-month period immediately following your Separation from Service (the “Delayed Period”) shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur a Separation from Service or (ii) your death (the applicable date, the “Permissible Payment Date”). b. Employer shall reimburse you for the reasonable after-tax cost of any benefits, contemplated by paragraphs 89, 9 10 and 1112, incurred by you in independently obtaining (or otherwise paying amounts to Employer to obtain) such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. With respect to any amount of expenses eligible for reimbursement under paragraphs 89, 9 10 and 1112, such expenses shall be reimbursed by Employer within 60 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer receives the applicable invoice from you (and approves such invoice) but in no event later than December 31 31st of the calendar year following the calendar year in which you incur the related expenses, or in the case of payment contemplated by paragraph 9(v)(e10(v)(e), December 31st of the calendar year following the calendar year in which the applicable taxes are remitted. d. Any payments delayed under paragraphs 89, 9 10 and 11 12 (other than the delayed settlement of equity-based awards subject to Section 409A, if any) as a result of the application of Section 409A shall accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed payment. In no event shall the reimbursements or in-kind benefits to be provided by Employer in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit.

Section 409A Delay. Notwithstanding any provisions of paragraphs 3(a), 4, 89, 9 10 and 11 12 to the contrary, if you are a “specified employee” (within the meaning of Section 409A (or any successor provisions) of the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations promulgated thereunder (“Section 409A”)) at the time of your Separation from Service Service, and if any portion of the payments or benefits to be received by you under paragraphs 3(a), 4, 89, 9 10 and 11 12 of this Agreement or under Schedule A upon your Separation from Service would be considered deferred compensation under Section 409A, then the following provisions shall apply to each such portion. a. (a) Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 3(a), 4, 89, 9 10 and 11 12 and Schedule A during the six-month period immediately following your Separation from Service (the “Delayed Period”) shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur a Separation from Service or (ii) your death (the applicable date, the “Permissible Payment Date”). b. (b) Employer shall reimburse you for the reasonable after-tax cost of any welfare benefits, contemplated by paragraphs 89, 9 10 and 1112, incurred by you in independently obtaining (or otherwise paying amounts to Employer to obtain) such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. (c) With respect to any amount of expenses eligible for reimbursement under paragraphs 89, 9 10 and 1112, such expenses shall be reimbursed by Employer within 60 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer receives the applicable invoice from you (and approves such invoice) but in no event later than December 31 31st of the calendar year following the calendar year in which you incur the related expenses, or in the case of payment contemplated by paragraph 9(v)(e10(v)(e), December 31st of the calendar year following the calendar year in which the applicable taxes are remitted. d. (d) Any payments delayed under paragraphs 83(a), 9 9, 10 and 11 12 (other than the delayed settlement of equity-based awards subject to Section 409A, if any) as a result of the application of Section 409A shall accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed payment. In no event shall the reimbursements or in-kind benefits to be provided by Employer in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit.

Section 409A Delay. Notwithstanding any provisions of paragraphs 4, 89, 9 10 and 11 12 to the contrary, if you are a “specified employee” (within the meaning of Section 409A (or any successor provisions) of the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations promulgated thereunder (“Section 409A”)) at the time of your Separation from Service Service, and if any portion of the payments or benefits to be received by you under paragraphs 4, 89, 9 10 and 11 12 upon your Separation from Service would be considered deferred compensation under Section 409A, then the following provisions shall apply to each such portion. a. Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 4, 89, 9 10 and 11 12 during the six-month period immediately following your Separation from Service (the “Delayed Period”) shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur a Separation from Service or (ii) your death (the applicable date, the “Permissible Payment Date”). b. Employer shall reimburse you for the reasonable after-tax cost of any benefits, contemplated by paragraphs 89, 9 10 and 1112, incurred by you in independently obtaining (or otherwise paying amounts to Employer to obtain) such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. With respect to any amount of expenses eligible for reimbursement under paragraphs 89, 9 10 and 1112, such expenses shall be reimbursed by Employer within 60 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer receives the applicable invoice from you (and approves such invoice) but in no event later than December 31 31st of the calendar year following the calendar year in which you incur the related expenses, or in the case of payment contemplated by paragraph 9(v)(e10(v)(e), December 31st of the calendar year following the calendar year in which the applicable taxes are remitted. d. Any payments delayed under paragraphs 89, 9 10 and 11 12 (other than the delayed settlement of equity-based awards subject to Section 409A) as a result of the application of Section 409A shall accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed payment. In no event shall the reimbursements or in-kind benefits to be provided by Employer in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit.

Section 409A Delay. Notwithstanding any provisions of paragraphs 3(a), 4, 89, 9 10 and 11 12 to the contrary, if you are a “specified employee” (within the meaning of Section 409A (or any successor provisions) of the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations promulgated thereunder (“Section 409A”)) at the time of your Separation from Service Service, and if any portion of the payments or benefits to be received by you under paragraphs 3(a), 4, 89, 9 10 and 11 12 of this Agreement or under Schedules A, B, C and D upon your Separation from Service would be considered deferred compensation under Section 409A, then the following provisions shall apply to each such portion. a. (a) Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 3(a), 4, 89, 9 10 and 11 12 and Schedules A, B, C and D during the six-month period immediately following your Separation from Service (the “Delayed Period”) shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur a Separation from Service or (ii) your death (the applicable date, the “Permissible Payment Date”). b. (b) Employer shall reimburse you for the reasonable after-tax cost of any welfare benefits, contemplated by paragraphs 89, 9 10 and 1112, incurred by you in independently obtaining (or otherwise paying amounts to Employer to obtain) such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. (c) With respect to any amount of expenses eligible for reimbursement under paragraphs 89, 9 10 and 1112, such expenses shall be reimbursed by Employer within 60 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer receives the applicable invoice from you (and approves such invoice) but in no event later than December 31 31st of the calendar year following the calendar year in which you incur the related expenses, or in the case of payment contemplated by paragraph 9(v)(e10(v)(e), December 31st of the calendar year following the calendar year in which the applicable taxes are remitted. d. (d) Any payments delayed under paragraphs 83(a), 9 9, 10 and 11 12 and Schedule D (other than the delayed settlement of equity-based awards subject to Section 409A, if any) as a result of the application of Section 409A shall accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed payment. In no event shall the reimbursements or in-kind benefits to be provided by Employer in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit.

Section 409A Delay. Notwithstanding any provisions of paragraphs 4, 8, 9 and 11 this Agreement to the contrary, if you are Consultant is a “specified employee” (within the meaning of Section 409A (or any successor provisions) of the Internal Revenue Code of 1986, as amended (the “Code”)409A, and determined in accordance with procedures adopted by the rules and regulations promulgated thereunder (“Section 409A”)) Company, at the time of your Consultant’s Separation from Service and if any portion of the payments or benefits to be received by you Consultant under paragraphs 4, 8, 9 and 11 this Section 2 upon your Consultant’s Separation from Service would be considered deferred compensation under Section 409A, then the following provisions shall apply to each such portion. a. (i) Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 4, 8, 9 and 11 this Section 2 during the six-month period immediately following your Consultant’s Separation from Service (the “Delayed Period”) shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur Consultant incurs a Separation from Service or (ii) your Consultant’s death (the applicable date, the “Permissible Payment Date”). b. Employer shall reimburse you for the reasonable after-tax cost of any benefits, contemplated by paragraphs 8, 9 and 11, incurred by you in independently obtaining such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. (ii) With respect to any amount of expenses eligible for reimbursement under paragraphs 8, 9 and 11Section 2(d), such expenses shall be reimbursed by Employer the Company within 60 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer the Company receives the applicable invoice from you Consultant (and approves such invoice) but in no event later than December 31 of the year following the year in which you incur Consultant incurs the related expenses, or in the case of payment contemplated by paragraph 9(v)(e), December 31st of the year following the year in which the applicable taxes are remitted. d. Any payments delayed under paragraphs 8, 9 and 11 (other than the delayed settlement of equity-based awards subject to Section 409Aiii) as a result of the application of Section 409A shall accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed payment. In no event shall the reimbursements or in-kind benefits to be provided by Employer the Company in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your Consultant’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. (iv) “Separation From Service” shall be deemed to have occurred on the date on which the level of bona fide services reasonably anticipated to be performed by Consultant is less than fifty percent of the average level of bona fide services performed by Consultant during the immediately preceding thirty-six-month period.

Section 409A Delay. Notwithstanding any provisions of paragraphs 4, 8, Section 9 and 11 to the contrary, if you are the Executive is a “specified employee” (within the meaning of Section 409A (or any successor provisions) of and determined pursuant to procedures adopted by the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations promulgated thereunder (“Section 409A”)Company) at the time of your his Separation from Service and if any portion of the payments or benefits to be received by you the Executive under paragraphs 4, 8, Section 9 and 11 upon your Separation his separation from Service service would be considered deferred compensation under Section 409A, then the following provisions shall will apply to each such the relevant portion.: a. (i) Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 4, 8, Section 9 and 11 during the six-month period immediately following your the Executive’s Separation from Service (the “Delayed Period”) shall will instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur the Executive incurs a Separation from Service or and (ii) your the Executive’s death (the applicable date, the “Permissible Payment Date”).; b. Employer shall reimburse you for the reasonable after-tax cost of any benefits, contemplated by paragraphs 8, 9 and 11, incurred by you in independently obtaining such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. (ii) With respect to any amount of expenses eligible for reimbursement under paragraphs 8, 9 and 11Section 9, such expenses shall will be reimbursed by Employer the Company within 60 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer the Company receives the applicable invoice from you the Executive (and approves such invoice) but in no event later than December 31 of the year following the year in which you incur the Executive incurs the related expenses, or in the case of payment contemplated by paragraph 9(v)(e), December 31st of the year following the year in which the applicable taxes are remitted.; d. Any payments (iii) Payments delayed under paragraphs 8, Section 9 and 11 (other than the delayed settlement of equity-based awards subject to Section 409A) as a result of the application of Section 409A shall will not accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed paymentinterest. In no event shall will the reimbursements or in-kind benefits to be provided by Employer the Company in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your will the Executive’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit.; and (iv) Each payment under this Agreement will be considered a “separate payment” and not of a series of payments for purposes of Section 409A.

Section 409A Delay. Notwithstanding any provisions of paragraphs 4, 8, 9 and 11 this Agreement to the contrary, if you are Consultant is a “specified employee” (within the meaning of Section 409A (or any successor provisions) of the Internal Revenue Code of 1986, as amended (the “Code”)409A, and determined in accordance with procedures adopted by the rules and regulations promulgated thereunder (“Section 409A”)) Company, at the time of your Consultant’s Separation from Service and if any portion of the payments or benefits to be received by you Consultant under paragraphs 4, 8, 9 and 11 this Section 5 upon your Consultant’s Separation from Service would be considered deferred compensation under Section 409A, then the following provisions shall apply to each such portion. a. (i) Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 4, 8, 9 and 11 this Section 5 during the six-month period immediately following your Separation from Service the Commencement Date (the “Delayed Period”) shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur Consultant incurs a Separation from Service or (ii) your Consultant’s death (the applicable date, the “Permissible Payment Date”). b. Employer shall reimburse you for the reasonable after-tax cost of any benefits, contemplated by paragraphs 8, 9 and 11, incurred by you in independently obtaining such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. (ii) With respect to any amount of expenses eligible for reimbursement under paragraphs 8, 9 and 11Section 5(d), such expenses shall be reimbursed by Employer the Company within 60 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer the Company receives the applicable invoice from you Consultant (and approves such invoice) but in no event later than December 31 of the year following the year in which you incur Consultant incurs the related expenses, or in the case of payment contemplated by paragraph 9(v)(e), December 31st of the year following the year in which the applicable taxes are remitted. d. Any payments delayed under paragraphs 8, 9 and 11 (other than the delayed settlement of equity-based awards subject to Section 409Aiii) as a result of the application of Section 409A shall accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed payment. In no event shall the reimbursements or in-kind benefits to be provided by Employer the Company in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your Consultant’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. (iv) “Separation From Service” shall be deemed to have occurred on the date on which the level of bona fide services reasonably anticipated to be performed by Consultant is less than fifty percent of the average level of bona fide services performed by Consultant during the immediately preceding thirty-six-month period.

Section 409A Delay. Notwithstanding any provisions of paragraphs 4, 8, 9 and 11 this Agreement to the contrary, if you are Consultant is a “specified employee” (within the meaning of Section 409A (or any successor provisions) of the Internal Revenue Code of 1986, as amended (the “Code”)409A, and determined in accordance with procedures adopted by the rules and regulations promulgated thereunder (“Section 409A”)) Company, at the time of your Consultant’s Separation from Service (as defined below) and if any portion of the payments or benefits to be received by you Consultant under paragraphs 4, 8, 9 and 11 this Section 3 upon your Consultant’s Separation from Service would be considered deferred compensation under Section 409A, then the following provisions shall apply to each such portion. a. (i) Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 4, 8, 9 and 11 this Section 3 during the six-month period immediately following your Consultant’s Separation from Service (the “Delayed Period”) shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur Consultant incurs a Separation from Service or (ii) your Consultant’s death (the applicable date, the “Permissible Payment Date”). b. Employer shall reimburse you for the reasonable after-tax cost of any benefits, contemplated by paragraphs 8, 9 and 11, incurred by you in independently obtaining such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. (ii) With respect to any amount of expenses eligible for reimbursement under paragraphs 8, 9 and 11Section 3(d), such expenses shall be reimbursed by Employer the Company within 60 45 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer the Company receives the applicable invoice from you Consultant (and approves such invoice) but in no event later than December 31 of the year following the year in which you incur Consultant incurs the related expenses, or in the case of payment contemplated by paragraph 9(v)(e), December 31st of the year following the year in which the applicable taxes are remitted. d. Any payments delayed under paragraphs 8, 9 and 11 (other than the delayed settlement of equity-based awards subject to Section 409Aiii) as a result of the application of Section 409A shall accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed payment. In no event shall the reimbursements or in-kind benefits to be provided by Employer the Company in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your Consultant’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. (iv) “Separation From Service” shall be deemed to have occurred on the date on which the level of bona fide services reasonably anticipated to be performed by Consultant is less than fifty percent of the average level of bona fide services performed by Consultant during the immediately preceding thirty-six-month period. In this regard it is the understanding of the parties that the Consultant’s services will be permanently reduced to no more than 20% of the average level of services the Consultant worked for the Company during the immediately preceding 36-month period prior to this retirement dates such that Consultant’s termination of employment with the Company immediately after the retirement date shall be classified as a “separation from service” for purposes of Section 409A.

Section 409A Delay. Notwithstanding any provisions of paragraphs 4, 8, Section 9 and 11 to the contrary, if you are the Executive is a “specified employee” (within the meaning of Section 409A (or any successor provisions) of and determined pursuant to procedures adopted by the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations promulgated thereunder (“Section 409A”)Company) at the time of your his Separation from Service and if any portion of the payments or benefits to be received by you the Executive under paragraphs 4, 8, Section 9 and 11 upon your Separation his separation from Service service would be considered deferred compensation under Section 409A, then the following provisions shall will apply to each such the relevant portion.: a. (i) Each portion of such payments and benefits that would otherwise be payable pursuant to paragraphs 4, 8, Section 9 and 11 during the six-month period immediately following your the Executive’s Separation from Service (the “Delayed Period”) shall will instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date you incur the Executive incurs a Separation from Service or and (ii) your the Executive’s death (the applicable date, the “Permissible Payment Date”).; b. Employer shall reimburse you for the reasonable after-tax cost of any benefits, contemplated by paragraphs 8, 9 and 11, incurred by you in independently obtaining such benefits during the Delayed Period, with such reimbursement to be paid to you by Employer on the Permissible Payment Date. c. (ii) With respect to any amount of expenses eligible for reimbursement under paragraphs 8, 9 and 11Section 9, such expenses shall will be reimbursed by Employer the Company within 60 30 calendar days (or, if applicable, on the Permissible Payment Date) following the date on which Employer the Company receives the applicable invoice from you the Executive (and approves such invoice) but in no event later than December 31 of the year following the year in which you incur the Executive incurs the related expenses, or in the case of payment contemplated by paragraph 9(v)(e), December 31st of the year following the year in which the applicable taxes are remitted.; d. Any payments (iii) Payments delayed under paragraphs 8, Section 9 and 11 (other than the delayed settlement of equity-based awards subject to Section 409A) as a result of the application of Section 409A shall will not accrue interest at Employer’s highest borrowing rate in effect on the Separation from Service and such interest shall be paid at the same time as the underlying delayed paymentinterest. In no event shall will the reimbursements or in-kind benefits to be provided by Employer the Company in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor shall your will the Executive’s right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit.; and (iv) Each payment under this Agreement will be considered a “separate payment” and not of a series of payments for purposes of Section 409A.