definiens: ( as defined forpurposes of Section 409A(d)(1 ) of the Code ), except for such failures to comply with Section 409A of the Code that arecapable of correction pursuant to any corrections programs established by the IRS, ( i ) such plan or arrangement has beenoperated since January 1, 2005 in compliance with Section 409A of the Code and all applicable IRS guidance promulgatedthereunder to the extent such plan or arrangement is subject to Section 409A of the Code and so as to avoid any tax, interestor penalty thereunder ; ( ii ) the document or documents that evidence each such plan or arrangement have conformed to theprovisions of Section 409A of the Code and the final regulations under Section 409A of the Code since December 31, 2008;and ( iii ) as to any such plan or arrangement in existence prior to January 1, 2005 and not subject to Section 409A of the Code, has not been ( within the meaning of IRS Notice 2005 - 1 ) at any time after October 3, 2004