Common use of Separation from Service under 409A Clause in Contracts

Separation from Service under 409A. Notwithstanding any provision to the contrary in this Agreement: (i) no amount shall be payable pursuant to Section 6 unless the termination of Employee’s employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the Department of Treasury Regulations; (ii) if Employee is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the termination benefits to which Employee is entitled under this Agreement (after taking into account all exclusions applicable to such termination benefits under Section 409A), including, without limitation, any portion of the additional compensation awarded pursuant to Section 6, is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Employee’s termination benefits shall not be provided to Employee prior to the earlier of (A) the expiration of the six-month period measured from the date of Employee’s “separation from service” with Verso Paper (as such term is defined in the Department of Treasury Regulations issued under Section 409A) or (B) the date of Employee’s death; provided that upon the earlier of such dates, all payments deferred pursuant to this Section 9(b)(ii) shall be paid in a lump sum to Employee, and any remaining payments due under this Agreement shall be paid as otherwise provided herein; (iii) the determination of whether Employee is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall be made by Verso Paper in accordance with the terms of Section 409A and applicable guidance thereunder (including, without limitation, Section 1.409A-1(i) of the Department of Treasury Regulations and any successor provision thereto); (iv) for purposes of Section 409A, Employee’s right to receive installment payments pursuant to Section 6 shall be treated as a right to receive a series of separate and distinct payments; and (v) to the extent that any reimbursement of expenses or in-kind benefits constitutes “deferred compensation” under Section 409A, such reimbursement or benefit shall be provided no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year.”

Separation from Service under 409A. Notwithstanding any provision to the contrary in this Agreement: (ia) no amount shall will be payable pursuant to Section 6 3 unless the termination of Employee’s employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the Department of Treasury Regulations; (iib) if Employee is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent that delayed commencement of any portion of the termination benefits to which Employee is entitled under this Agreement (after taking into account all exclusions applicable to such termination benefits under Section 409A), including, without limitation, any portion of the additional compensation awarded pursuant to Section 63, is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Employee’s termination benefits shall will not be provided to Employee prior to the earlier of (Ai) the expiration of the six-month period measured from the date of Employee’s “separation from service” with Verso Paper (as such term is defined in the Department of Treasury Regulations issued under Section 409A) or (Bii) the date of Employee’s death; , provided that upon the earlier of such dates, all payments deferred pursuant to this Section 9(b)(ii6.2(b) shall will be paid in a lump sum to Employee, and any remaining payments due under this Agreement shall will be paid as otherwise provided herein; (iii) the determination of whether Employee is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall be made by Verso Paper in accordance with the terms of Section 409A and applicable guidance thereunder (including, without limitation, Section 1.409A-1(i) of the Department of Treasury Regulations and any successor provision thereto); (iv) for purposes of Section 409A, Employee’s right to receive installment payments pursuant to Section 6 shall be treated as a right to receive a series of separate and distinct payments; and (v) to the extent that any reimbursement of expenses or in-kind benefits constitutes “deferred compensation” under Section 409A, such reimbursement or benefit shall be provided no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year.”;

Separation from Service under 409A. Notwithstanding any provision to the contrary in this Agreement: (i) no amount shall be payable pursuant to Section 6 unless the termination of Employee’s employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the Department of Treasury Regulations; (ii) if Employee is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent that delayed commencement of any portion of the termination benefits to which Employee is entitled under this Agreement (after taking into account all exclusions applicable to such termination benefits under Section 409A), including, without limitation, any portion of the additional compensation awarded pursuant to Section 6, is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Employee’s termination benefits shall not be provided to Employee prior to the earlier of (A) the expiration of the six-month period measured from the date of Employee’s “separation from service” with Verso Paper (as such term is defined in the Department of Treasury Regulations issued under Section 409A) or (B) the date of Employee’s death; , provided that upon the earlier of such dates, all payments deferred pursuant to this Section 9(b)(ii) shall be paid in a lump sum to Employee, and any remaining payments due under this Agreement shall be paid as otherwise provided herein; (iii) the determination of whether Employee is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall be made by Verso Paper in accordance with the terms of Section 409A and applicable guidance thereunder (including, without limitation, Section 1.409A-1(i) of the Department of Treasury Regulations and any successor provision thereto); (iv) for purposes of Section 409A, Employee’s right to receive installment payments pursuant to Section 6 shall be treated as a right to receive a series of separate and distinct payments; and (v) to the extent that any reimbursement of expenses or in-kind benefits constitutes “deferred compensation” under Section 409A, such reimbursement or benefit shall be provided no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year.”

Separation from Service under 409A. Notwithstanding any provision to the contrary in this Agreement: (ia) no amount shall will be payable pursuant to Section 6 3 unless the termination of Employee’s 's employment constitutes a “"separation from service” " within the meaning of Section 1.409A-1(hl.409A-l(h) of the Department of Treasury Regulations; (iib) if Employee is deemed at the time of his separation from service to be a “"specified employee” " for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent that delayed commencement of any portion of the termination benefits to which Employee is entitled under this Agreement (after taking into account all exclusions applicable to such termination benefits under Section 409A), including, without limitation, any portion of the additional compensation awarded pursuant to Section 63, is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Employee’s 's termination benefits shall will not be provided to Employee prior to the earlier of (Ai) the expiration of the six-month period measured from the date of Employee’s “'s "separation from service” " with Verso Paper (as such term is defined in the Department of Treasury Regulations issued under Section 409A) or (Bii) the date of Employee’s 's death; , provided that upon the earlier of such dates, all payments deferred pursuant to this Section 9(b)(ii6.2(b) shall will be paid in a lump sum to Employee, and any remaining payments due under this Agreement shall will be paid as otherwise provided herein; (iiic) the determination of whether Employee is a “"specified employee” " for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall will be made by Verso Paper in accordance with the terms of Section 409A and applicable guidance thereunder (including, without limitation, Section 1.409A-1(il.409A-l(i) of the Department of Treasury Regulations and any successor provision thereto); (ivd) for purposes of Section 409A, Employee’s 's right to receive installment payments pursuant to Section 6 shall 3 will be treated as a right to receive a series of separate and distinct payments; and (ve) to the extent that any reimbursement of expenses or in-kind benefits constitutes “"deferred compensation” " under Section 409A, such reimbursement or benefit shall will be provided no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall will not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall will not affect the amount of in-kind benefits provided in any other year.”