Common use of Section 409A Matters Clause in Contracts

Section 409A Matters. Payments to the Employee under Section 5.2 (or, if applicable, under Section 6.1 in lieu of Section 5.2)shall be bifurcated into two portions, consisting of the portion, if any, that includes the maximum amount of the payments that does not constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the portion, if any, that includes the excess of the total payments and that does constitute nonqualified deferred compensation. Payments shall first be made from the portion that does not consist of nonqualified deferred compensation until such portion is exhausted and then shall be made from the portion that does constitute nonqualified deferred compensation. Notwithstanding the foregoing, because the Employee is a “specified employee” as defined in Section 409A(a)(3)(B)(i) of the Code, the commencement of the delivery of the portion that constitutes nonqualified deferred compensation will be delayed to the date that is 6 months and one day after the Employee’s termination of employment (the “Earliest Payment Date”). Any payments that are delayed pursuant to the preceding sentence shall be paid pro rata during the period beginning on the Earliest Payment Date and ending on the date that is 12 months following termination of the Employee’s employment. The determination of whether, and the extent to which, any of the payments to be made to the Employee hereunder are nonqualified deferred compensation shall be made after the application of all applicable exclusions under Treasury Reg. § 1.409A-1(b)(9). Any payments that are intended to qualify for the exclusion for separation pay due to involuntary separation from service set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the second taxable year of the Employee following the taxable year of the Employee in which the Employee’s termination of employment occurs.

Section 409A Matters. Payments Employee and the Company agree that this Agreement is intended to comply with the Employee under Section 5.2 (or, if applicable, under Section 6.1 in lieu requirements of Section 5.2)shall be bifurcated into two portions409A and the regulations promulgated thereunder or an exemption from Section 409A. In the event that after execution of this Agreement either Employee or the Company makes a determination inconsistent with the preceding sentence, consisting Employee or the Company shall promptly notify the other of the portion, if any, that includes basis for her or its determination. The parties agree to renegotiate in good faith the maximum amount timing of the payments to be made under this Agreement (but not the amounts of such payments) if it is mutually determined that does not constitute this Agreement as structured would have adverse tax consequences to Employee. Employee and the Company agree that all payments to be made upon a termination of employment under this Agreement may only be made upon a “nonqualified deferred compensationseparation from service” under Section 409A. Employee acknowledges and agrees if Employee is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the portionfinal regulations and any guidance promulgated thereunder at the time of Employee’s termination, if any, that includes the excess of the total payments and that does constitute nonqualified deferred compensation. Payments shall first any payment to be made from the portion that does not consist of nonqualified deferred compensation until such portion is exhausted and then shall or benefit to be made from the portion that does constitute nonqualified deferred compensation. Notwithstanding the foregoing, because the provided to Employee is a “specified employee” as defined in pursuant to Section 409A(a)(3)(B)(i) of the Code, the commencement of the delivery of the portion that constitutes nonqualified deferred compensation 2 will be delayed to until the earlier of (a) the first payroll date that occurs on or after the date that is 6 six (6) months and one (1) day following the date of Employee’s separation from service, and (b) within 10 business days of Employee’s death occurring after the Employee’s termination separation from service date, to the extent necessary for this Agreement and such payment or benefit to comply with Section 409A; provided that, if any payment to be made or benefit to be provided to Employee is delayed as a result of employment (this Section 17, such delayed payment or benefit will be paid to Employee in a lump-sum as soon as permitted under Section 409A. Nothing set forth in this Section 17 shall be construed to modify or limit the “Earliest Payment Date”provisions of Section 1(b). Any payments that are delayed pursuant For purposes of this Agreement, each amount to the preceding sentence be paid or benefit to be provided hereunder shall be paid pro rata during construed as a separate identified payment for purposes of Section 409A. In addition, if the period beginning on the Earliest Payment Date and ending on Company reasonably determines that a change in applicable law following the date that is 12 months following termination of the Employee’s employment. The determination of whether, and the extent to which, any of this Agreement causes the payments to be made or benefits to be provided to be payable to Employee without delay but in another manner that complies with Section 409A, Employee and the Employee hereunder are nonqualified deferred compensation shall be made after Company agree to amend this Agreement to reform the application of all applicable exclusions under Treasury Reg. § 1.409A-1(b)(9). Any payments that are intended to qualify for the exclusion for separation pay due to involuntary separation from service payment provisions set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii) must 2 to provide to Employee economic benefits that are as close as reasonably possible to those contemplated by Section 2 but that still comply with Section 409A. Subject to the foregoing, this Agreement will be paid no later than interpreted, construed and administered in a manner that satisfies the last day requirements of Section 409A so that none of the second taxable year retirement payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409(a) (1) of the Code and any ambiguities herein will be interpreted to so comply. Notwithstanding the parties’ intent and commitment to work together to effect amendments of this Agreement to ensure its compliance with the requirements of Section 409A, should it be determined that any payment or benefit provided hereunder is subject to Section 409A(a)(1), Employee following the taxable year of the Employee in which the Employee’s termination of employment occursshall be responsible for any resulting additional tax or penalties legally applied to her thereunder.

Section 409A Matters. Payments Notwithstanding anything else provided herein, to the Employee extent any payments provided under this Amended Agreement in connection with Executive’s termination of employment constitute deferred compensation subject to Section 409A of the Code, and Executive is deemed at the time of such termination of employment to be a “specified Executive” under Section 5.2 409A, then such payment shall not be made or commence until the earlier of (ori) the expiration of the 6-month period measured from Executive’s separation from service from the Company or (ii) the date of Executive’s death following such a separation from service; provided, if applicablehowever, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive including, without limitation, the additional twenty-percent (20%) tax for which Executive would otherwise be liable under Section 6.1 409A(a)(1)(B) in lieu the absence of Section 5.2)shall be bifurcated into two portionssuch a deferral. The first payment thereof will include a catch-up payment covering the amount that would have otherwise been paid during the period between Executive’s termination of employment and the first payment date but for the application of this provision, consisting and the balance of the portion, installments (if any) will be payable in accordance with their original schedule. Except as otherwise expressly provided herein, that includes to the maximum extent any expense reimbursement or the provision of any in-kind benefit under this Amended Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit. To the extent that any provision of this Amended Agreement is ambiguous as to its compliance with Section 409A, the provision will be read in such a manner so that all payments that does not constitute hereunder comply with Section 409A. To the extent any payment under this Amended Agreement may be classified as a “nonqualified deferred compensationshort-term deferral” within the meaning of Section 409A of the Internal Revenue Code of 1986409A, as amended (the “Code”), and the portion, if any, that includes the excess of the total payments and that does constitute nonqualified deferred compensation. Payments shall first be made from the portion that does not consist of nonqualified deferred compensation until such portion is exhausted and then payment shall be made from the portion that does constitute nonqualified deferred compensation. Notwithstanding the foregoingdeemed a short-term deferral, because the Employee is a “specified employee” as defined in Section 409A(a)(3)(B)(i) of the Code, the commencement of the delivery of the portion that constitutes nonqualified deferred compensation will be delayed to the date that is 6 months and one day after the Employee’s termination of employment (the “Earliest Payment Date”). Any payments that are delayed pursuant to the preceding sentence shall be paid pro rata during the period beginning on the Earliest Payment Date and ending on the date that is 12 months following termination of the Employee’s employment. The determination of whether, and the extent to which, any of the payments to be made to the Employee hereunder are nonqualified deferred compensation shall be made after the application of all applicable exclusions under Treasury Reg. § 1.409A-1(b)(9). Any payments that are intended to even if it may also qualify for the exclusion for separation pay due to involuntary separation an exemption from service set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day 409A under another provision of the second taxable year of the Employee following the taxable year of the Employee in which the Employee’s termination of employment occurs.Section 409A.

Section 409A Matters. Payments to the Employee under Section 5.2 6.2 or 6.3 (or, if applicable, under Section 6.1 7.1 in lieu of Section 5.2)shall 6.2) shall be bifurcated into two portions, consisting of the portion, if any, that includes the maximum amount of the payments that does not constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the portion, if any, that includes the excess of the total payments and that does constitute nonqualified deferred compensation. Payments shall first be made from the portion that does not consist of nonqualified deferred compensation until such portion is exhausted and then shall be made from the portion that does constitute nonqualified deferred compensation. Notwithstanding the foregoing, because the Employee is a “specified employee” as defined in Section 409A(a)(3)(B)(i) of the Code, the commencement of the delivery of the portion that constitutes nonqualified deferred compensation will be delayed to the date that is 6 months and one day after the Employee’s termination of employment (the “Earliest Payment Date”). Any payments that are delayed pursuant to the preceding sentence shall be paid pro rata during the period beginning on the Earliest Payment Date and ending on the date that is 12 months following termination of the Employee’s employment. The determination of whether, and the extent to which, any of the payments to be made to the Employee hereunder are nonqualified deferred compensation shall be made after the application of all applicable exclusions under Treasury Reg. § Section 1.409A-1(b)(9). Any payments that are intended to qualify for the exclusion for separation pay due to involuntary separation from service set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the second taxable year of the Employee following the taxable year of the Employee in which the Employee’s termination of employment occurs.

Section 409A Matters. Payments (a) Notwithstanding any term or condition in the Agreement to the Employee under Section 5.2 (orcontrary, if applicable, under Section 6.1 in lieu of Section 5.2)shall be bifurcated into two portions, consisting of the portion, if any, that includes the maximum amount of the payments that does not constitute Employee is a “nonqualified deferred compensationspecified employee” (within the meaning of Section 409A 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended amended, (the “Code”)) at the time of his termination of employment with the Employers and is entitled to payments under the Agreement which are on account of “involuntary separation of service” within the meaning of Treasury Regulation Section 1.409A-1(n), and amounts payable to the portionEmployee, if anynotwithstanding anything in this Agreement to the contrary, that includes during the excess first six (6) consecutive months immediately following the month in which such termination of employment occurs shall be suspended after the total of such payments equal the lesser of the total payments and that does constitute nonqualified deferred compensationamount specified under Treasury Regulation 1.409A-1(a)(9)(iii)(A)(1) or (2). Payments shall first be made from the portion that does not consist of nonqualified deferred compensation until such portion is exhausted and then shall be made from the portion that does constitute nonqualified deferred compensation. Notwithstanding the foregoing, because If the Employee is such a “specified employee” as defined in Section 409A(a)(3)(B)(i) at the time of the Code, the commencement of the delivery of the portion that constitutes nonqualified deferred compensation will be delayed to the date that is 6 months and one day after the Employee’s his termination of employment (with the Employers and is entitled to payments under the Agreement which are not on account of such “Earliest Payment Dateinvoluntary separation of service”). Any payments that are delayed pursuant , amounts payable to the preceding sentence Employee, notwithstanding anything in this Agreement to the contrary, during the first six (6) consecutive months immediately following the month in which such termination of employment occurs shall be suspended. To the extent such payments payable during such six (6) month period are suspended as provided herein, such amounts shall be paid pro rata during the period beginning on the Earliest Payment Date and ending on the date that is 12 months following termination in a single sum as of the Employee’s employment. The determination of whether, and the extent to which, any first regular payroll date of the payments to be made to the Employee hereunder are nonqualified deferred compensation shall be made after the application applicable entity of all applicable exclusions under Treasury Reg. § 1.409A-1(b)(9). Any payments that are intended to qualify for the exclusion for separation pay due to involuntary separation from service set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than Holdings, immediately following the last day of the second taxable year of the Employee sixth consecutive month immediately following the taxable year of the Employee month in which the Employee’s such termination of employment occurs, along with interest on such suspended amounts at the rate of twelve percent (12%) per annum from the date such amounts would have otherwise been paid but to the date they are paid. Payments otherwise payable after such six (6) month period shall be made as otherwise provided in this Agreement.