MEANS THE PERIOD ENDING ON THE LATER OF THE FIFTEENTH DAY OF
THE THIRD MONTH FOLLOWING THE END OF EXECUTIVE'S TAX YEAR IN WHICH THE
SEPARATION FROM SERVICE OCCURS AND THE FIFTEENTH DAY OF THE THIRD MONTH
FOLLOWING THE END OF THE COMPANY'S TAX YEAR IN WHICH THE SEPARATION FROM SERVICE
OCCURS; AND
(II)
EACH INSTALLMENT OF THE SEVERANCE PAYMENTS
AND BENEFITS DUE UNDER THIS AGREEMENT THAT IS NOT DESCRIBED IN PARAGRAPH
C(I) ABOVE AND THAT WOULD, ABSENT THIS SUBSECTION, BE PAID WITHIN THE SIX-MONTH
PERIOD FOLLOWING EXECUTIVE'S "SEPARATION FROM SERVICE" FROM THE COMPANY SHALL
NOT BE PAID UNTIL THE DATE THAT IS SIX MONTHS AND ONE DAY AFTER SUCH SEPARATION
FROM SERVICE (OR, IF EARLIER, EXECUTIVE'S DEATH), WITH ANY SUCH INSTALLMENTS
THAT ARE REQUIRED TO BE DELAYED BEING ACCUMULATED DURING THE SIX-MONTH PERIOD
AND PAID IN A LUMP SUM ON THE DATE THAT IS SIX MONTHS AND ONE DAY FOLLOWING
EXECUTIVE'S SEPARATION FROM SERVICE AND ANY SUBSEQUENT INSTALLMENTS, IF ANY,
BEING PAID IN ACCORDANCE WITH THE DATES AND TERMS SET FORTH HEREIN; PROVIDED,
HOWEVER, THAT THE PRECEDING PROVISIONS OF THIS SENTENCE SHALL NOT APPLY TO ANY
INSTALLMENT OF SEVERANCE PAYMENTS AND BENEFITS IF AND TO THE MAXIMUM EXTENT THAT
THAT SUCH INSTALLMENT IS DEEMED TO BE PAID UNDER A SEPARATION PAY PLAN THAT DOES
NOT PROVIDE FOR A DEFERRAL OF COMPENSATION BY REASON OF THE APPLICATION OF
TREASURY REGULATION § 1.409A-1(B)(9)(III) (RELATING TO SEPARATION PAY UPON AN
INVOLUNTARY SEPARATION FROM SERVICE).
ANY INSTALLMENTS THAT QUALIFY FOR THE
EXCEPTION UNDER TREASURY REGULATION § 1.409A-1(B)(9)(III) MUST BE PAID NO LATER
THAN THE LAST DAY OF EXECUTIVE'S SECOND TAXABLE YEAR FOLLOWING THE TAXABLE YEAR
IN WHICH THE SEPARATION FROM SERVICE OCCURS.
(D)
THE DETERMINATION OF WHETHER AND WHEN EXECUTIVE'S
SEPARATION FROM SERVICE FROM THE COMPANY HAS OCCURRED SHALL BE MADE AND IN A
MANNER CONSISTENT WITH, AND BASED ON THE PRESUMPTIONS SET FORTH IN, TREASURY
REGULATION § 1.409A-1(H).
SOLELY FOR PURPOSES OF THIS PARAGRAPH D, "COMPANY"
SHALL INCLUDE ALL PERSONS WITH WHOM THE COMPANY WOULD BE CONSIDERED A SINGLE
EMPLOYER UNDER SECTION 414(B) AND 414(C) OF THE CODE.
(E)
ALL REIMBURSEMENTS AND IN-KIND BENEFITS PROVIDED UNDER
THIS AGREEMENT SHALL BE MADE OR PROVIDED IN ACCORDANCE WITH THE REQUIREMENTS OF
SECTION 409A TO THE EXTENT THAT SUCH REIMBURSEMENTS OR IN-KIND BENEFITS ARE
SUBJECT TO SECTION 409A, INCLUDING, WHERE APPLICABLE, THE REQUIREMENTS THAT
(I) ANY REIMBURSEMENT IS FOR EXPENSES INCURRED DURING EXECUTIVE'S LIFETIME (OR
DURING A SHORTER PERIOD OF TIME SPECIFIED IN THIS AGREEMENT), (II) THE AMOUNT OF
EXPENSES ELIGIBLE FOR REIMBURSEMENT DURING A CALENDAR YEAR MAY NOT AFFECT THE
EXPENSES ELIGIBLE FOR REIMBURSEMENT IN ANY OTHER CALENDAR YEAR, (III) THE
REIMBURSEMENT OF AN ELIGIBLE EXPENSE WILL BE MADE ON OR BEFORE THE LAST DAY OF
THE CALENDAR YEAR FOLLOWING THE YEAR
13
IN WHICH THE EXPENSE IS INCURRED AND (IV) THE RIGHT TO REIMBURSEMENT IS NOT
SUBJECT TO SET OFF OR LIQUIDATION OR EXCHANGE FOR ANY OTHER BENEFIT.
(F)
THIS AGREEMENT IS INTENDED TO COMPLY WITH THE PROVISIONS
OF SECTION 409A AND