Common use of Additional Section 409A Provisions Clause in Contracts

Additional Section 409A Provisions. The intent of the parties is that payments and benefits under this Agreement be exempt from the application of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) or comply with the requirements of Section 409A and that this Agreement shall be interpreted and administered in accordance with such intention. Accordingly, the parties hereby agree as follows: (a) In any instance where the payment of nonqualified deferred compensation subject to the provisions of Section 409A is triggered by the occurrence of a Change in Control or if the form of such payment (lump sum versus installments) is changed due to such an event, the definition of “Change in Control” set forth in Section 1(d) shall be amended as follows and shall otherwise be amended and interpreted in a manner consistent with the definitions of a change in ownership of a corporation, a change in the effective control of a corporation or a change in the ownership of a substantial portion of the assets of a corporation, in each case determined in accordance with Treasury Regulation 1.409A-3(i)(5): (i) the percentages set forth in clauses (i) and (iii) of the definition set forth in Section 1(d) shall be amended to read “30%” rather than “25%;” and (ii) clause (iv) of the definition set forth in Section 1(d) shall be deleted. (b) In the event that (i) Executive becomes entitled to payments under Section 3 of the Agreement in respect of a termination of employment occurring prior to a Change in Control or (ii) Executive becomes entitled to payments under Section 3 of the Agreement following a Change in Control which is either (1) not a change in ownership of a corporation, a change in the effective control of a corporation or a change in the ownership of a substantial portion of the assets of a corporation, in each case determined in accordance with Treasury Regulation 1.409A-3(i)(5) or (2) more than two years following the occurrence of the Change in Control, then to the extent necessary to comply with the requirements of Section 409A, payments to the Executive shall be made in accordance with the schedule set forth in the last paragraph of Section 3(b). (c) Notwithstanding anything in the Agreement to the contrary, any reimbursement or in-kind benefit provided under the Agreement shall be provided in a manner that complies with the requirements of Treasury Regulation 1.409A-3(i)(1)(iv) and, without limiting the foregoing, may not be subject to liquidation or exchange for another benefit. (d) Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any payments or benefits of nonqualified deferred compensation subject to the provisions of Section 409A except to the extent specifically permitted or required by Section 409A of the Code. (e) The release required under the provisions of Section 5 of the Agreement (1) will be provided to the Executive within 5 days of a termination of employment and (2) will require that the Executive execute the waiver within 45 days of its receipt (the “Release Deadline”). Notwithstanding anything to the contrary provided herein (but subject to the six month delay set forth herein in order to comply with Section 409A), payments subject to the execution of the release shall be made or commence on the tenth day following the Release Deadline.