Section 409a. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp
...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a.
(a) Anything in This Agreement is intended to comply with the requirements of Section 409A of the Code, and shall be interpreted and construed consistently with such intent. The payments to the Executive pursuant to this Agreement are also intended to be exempt from Section 409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury regulation §1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury regulation §1.409A-1(b)(4), and f...or this purpose each payment shall constitute a "separately identified" amount within the meaning of Treasury Regulation §1.409A-2(b)(2). In the event the terms of this Agreement would subject the Executive to taxes or penalties under Section 409A of the Code ("409A Penalties"), the Company and the Executive shall cooperate diligently to amend the terms of this Agreement to avoid such 409A Penalties, to the contrary notwithstanding, extent possible; provided that in no event shall the Company be responsible for any 409A Penalties that arise in connection with any amounts payable under this Agreement. To the extent any amounts under this Agreement are payable by reference to the Executive's "termination of employment," such term shall be deemed to refer to the Executive's "separation from service," within the meaning of Section 409A of the Code. Notwithstanding any other provision in this Agreement, if at the time Executive is a "specified employee," as defined in Section 409A of the Code, as of the date of the Executive's separation from service service, then to the extent any amount payable to the Executive (i) constitutes the payment of nonqualified deferred compensation, within the meaning of Section 409A of the Code, (ii) is payable upon the Company determines that Executive's separation from service and (iii) under the Executive is a "specified employee" within the meaning terms of Section 409A(a)(2)(B)(i) of the Code, then this Agreement would be payable prior to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account six-month anniversary of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, service, such payment shall not be payable and such benefit shall not be provided delayed until the date that is earlier to occur of (a) the earlier first business day following the six-month anniversary of (A) six months and one day after the Executive's separation from service, or (B) service and (b) the date of the Executive's death. If any such delayed cash payment is Any reimbursement or advancement payable to the Executive pursuant to this Agreement or otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided conditioned on the submission by the Executive of all expense reports reasonably required by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements under any applicable expense reimbursement policy, and shall be paid as soon as administratively practicable, to the Executive within 30 days following receipt of such expense reports, but in no event shall any reimbursement be paid after later than the last day of the taxable calendar year following the taxable calendar year in which the expense was incurred. The Executive incurred the reimbursable expense. Any amount of expenses eligible for reimbursement, or in-kind benefits provided or reimbursable expenses incurred in one taxable benefit provided, during a calendar year shall not affect the in-kind benefits to be provided or the amount of expenses eligible for reimbursement in reimbursement, or in-kind benefit to be provided, during any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such calendar year. The right to any reimbursement or in-kind benefits is benefit pursuant to this Agreement or otherwise shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. benefit.
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Section 409a. (a)
Anything To the extent (a) any payments or benefits to which Executive becomes entitled under this Agreement, or under any agreement or plan referenced herein, in
this Agreement connection with Executive's termination of employment with the Company constitute deferred compensation subject to
Section 409A of the
contrary notwithstanding, if Code and (b) Executive is deemed at the time of
the Executive's separation from service within the meaning such termination of
Section 409A of the Code, t...he Company determines that the Executive is employment to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments shall not be made or benefits shall be payable only upon commence until the earliest of (i) the expiration of the six (6)-month period measured from the date of Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with service" (as such term is at the presumptions set forth time defined in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Regulations under Section 409A of the Code. Code) from the Company; or (ii) the date of Executive's death following such separation from service; provided, however, 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 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to Executive or Executive's beneficiary in one lump sum (without interest). (b) It is intended that each installment of the payments provided hereunder constitute separate "payments" for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). (c) It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulation Section 1.409A-1(b)(4) (as a "short-term deferral") and/or Treasury Regulation Section 1.409A-1(b)(9) (iii) (as "involuntary separation pay"). (d) To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant (e) Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation be subject to Section 409A of the Code but do not satisfy an exemption from, Code, the amount of any such expenses eligible for reimbursement, or the conditions of, 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 the Executive incurred such Section. 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.
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Section 409a.
(a) Anything in It is intended that all of the severance benefits and other payments payable under this Agreement
satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be constr...ued in a manner that complies with Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary notwithstanding, in this Agreement, if Executive is deemed by the Company at the time of Executive's Separation from Service to be a "specified employee" for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the six-month and one day period measured from the date of Executive's separation Separation from service within Service with the meaning Company, (ii) the date of Executive's death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Code, first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 9 shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If the Company determines that any severance benefits provided under this Agreement constitutes "deferred compensation" under Section 409A, for purposes of determining the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) schedule for payment of the Code, then severance benefits, the effective date of the Release will not be deemed to have occurred any earlier than the sixtieth (60th) date following the Separation From Service, regardless of when the Release actually becomes effective. In addition to the above, to the extent any required to comply with Section 409A and the applicable regulations and guidance issued thereunder, if the applicable deadline for Executive to execute (and not revoke) the applicable Release spans two calendar years, payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to applicable severance benefits shall not commence until the 20 percent additional tax imposed pursuant to Section 409A(a) beginning of the second calendar year. To the extent required to avoid accelerated taxation and/or tax penalties under Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering 409A, amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement reimbursable to Executive under this Agreement shall be provided by the Company paid to Executive on or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after before the last day of the taxable year following the taxable year in which the expense was incurred. The incurred and the amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not effect amounts reimbursable or provided in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) subsequent year. The Company makes no representation that any or warranty and shall have no liability to all of the Executive or any other person if any provisions of payments described in this Agreement are determined to constitute deferred compensation subject to will be exempt from or comply with Code Section 409A of the and makes no undertaking to preclude Code but do not satisfy an exemption from, or the conditions of, Section 409A from applying to any such Section. payment.
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Section 409a.
(a) Anything in It is intended that this Agreement
be drafted and administered in compliance with (i) Section 409A of the Code, including, but not limited to, any future amendments to
Section 409A of the
contrary notwithstanding, Code, and any other Internal Revenue Service or other governmental rulings or interpretations ("IRS Guidance") issued pursuant to Section 409A of the Code or (ii) an applicable exemption. So as not to subject the Executive to payment of any additional interest or tax un...der Section 409A of the Code, if payment or provision of any amount or benefit hereunder that is subject to Section 409A of the Code at the time of the Executive's separation from service within the meaning of specified herein would subject such amount or benefit to any additional tax under Section 409A of the Code, the Company determines shall use its best to efforts to ensure that payment or provision of such amount or benefit shall be postponed to the earliest commencement date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. In addition, to the extent that any IRS Guidance issued under Section 409A of the Code would result in the Executive being subject to the payment of any additional interest or tax under Section 409A of the Code, the Company agrees to use its best efforts to amend this Agreement in order to avoid the imposition on Executive of any such additional interest or tax under Section 409A of the Code, which amendment shall have the minimum economic effect necessary and be reasonably determined in good faith by the Company. For purposes of Section 409A of the Code, each installment payment of any severance pursuant to this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a "separation from service" under Section 409A. Notwithstanding the foregoing, (i) any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible, (ii) Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible, (iii) nothing contained herein shall be construed as a representation, guarantee or other undertaking on the part of the Company that any payment made pursuant to this Agreement (including, without limitation, the Bonus or any severance amount), is a "specified employee" or will be found to comply with the requirements of Section 409A of the Code or any other regulations or guidance issued thereunder (including the IRS Guidance), and (iv) in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A. Notwithstanding any other provision of this Agreement, if any payment or benefit provided to Executive in connection with his termination of employment is determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A(a)(2)(B)(i) of the Code, 409A and Executive is determined to be a "specified employee" as defined in Section 409A(a)(2)(b)(i), then to the extent any such payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided paid until the first payroll date that is to occur following the earlier six-month anniversary of (A) six months and one day after the Date of Termination or, if earlier, on Executive's separation from service, or (B) the Executive's death. If death (the "Specified Employee Payment Date"). The aggregate of any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts payments that would otherwise have been paid during before the six-month period but for the application of this provision, and the balance of the installments Specified Employee Payment Date shall be payable paid to Executive in a lump sum on the Specified Employee Payment Date and, thereafter, any remaining payments shall be paid without delay in accordance with their original schedule. (b) All Notwithstanding any other provision of this Agreement, to the extent required by Section 409A, each reimbursement or in-kind benefits benefit provided and expenses eligible for reimbursement under this Agreement shall be provided by in accordance with the Company following: 11 (a) the amount of expenses eligible for reimbursement, or incurred by in-kind benefits provided, during each calendar year cannot affect the Executive during the time periods set forth expenses eligible for reimbursement, or in-kind benefits to be provided, in this Agreement. All reimbursements any other calendar year; (b) any reimbursement of an eligible expense shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after to Executive on or before the last day of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in incurred; and (c) any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement reimbursements or in-kind benefits is under this Agreement shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a. (a)
Anything in Compliance and Exemption. It is intended that the payments and benefits provided under this Agreement
shall be exempt from or comply with the application of the requirements of Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A"). This Agreement shall be construed, administered and governed in a manner that affects 13 such intent. Specifically, any taxable benefits or payments provided under this Agreement are deemed to be separate payments that qualify ...for the "short-term deferral" exclusion from Section 409A to the contrary notwithstanding, maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the "involuntary separation pay" exclusion from Section 409A, to the maximum extent possible. To the extent that none of these exceptions (or any other available exception) applies, then notwithstanding anything contained herein to the contrary, and to the extent required to comply with Section 409A, if at the time Executive is a "specified employee," as determined by WMI, as of the Executive's separation from service his Termination Date, then all amounts due under this Agreement that constitute a "deferral of compensation" within the meaning of Section 409A 409A, that are provided as a result of the Code, the Company determines that the Executive is a "specified employee" "separation from service" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable 409A, and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been be paid or provided during the six-month period but for first six months following the application of this provision, Termination Date, shall be accumulated through and paid or provided on the balance first business day that is more than six months after the date of the installments shall be payable Termination Date (or, if Executive dies during such six-month period, within 90 days after Executive's death). (b) Reimbursements and In-Kind Benefits. All reimbursements and in accordance with their original schedule. (b) All in-kind kind benefits provided and expenses eligible for reimbursement under this Agreement shall be made or provided by in accordance with the Company or incurred by requirements of Section 409A, including, where applicable, the Executive during the time periods set forth in this Agreement. All reimbursements requirement that (i) any reimbursement shall be paid as soon as administratively practicable, but for expenses incurred during Executive's lifetime (or during a shorter period of time specified in no event shall the Agreement), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be paid after made on or before the last day of the taxable calendar year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred, and (iv) the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind in kind benefits is not subject to liquidation or exchange for another benefit. (c) Six Month Delay Period. Notwithstanding any provision to the contrary in this Agreement, if Executive is determined by WMI on the date of Executive's separation from service to be a "specified employee" within the meaning of Section 409A(a)(2)(B), and the stock of the Company is publicly traded, then the payments specified as being subject to this Section 20 shall not be made or provided to the extent required by Section 409A until the later of (A) the payment date set forth in this Agreement or (B) the date that is the earliest of (i) the expiration of the six-month period measured from the date of Executive's separation from service within the meaning of Section 409A, (ii) the date of Executive's death, or (iii) such other date that complies with, or is exempt from, the requirements of Section 409A (the "Delay Period"). Payments subject to the Delay Period shall be paid to Executive without interest for such delay in payment. All other payments and benefits due under this Agreement that are not subject to the foregoing shall be paid or provided in accordance with the normal payment dates specified for them herein. (d) Substitution. To the extent that any payment or benefit described in payable under this Agreement constitutes "non-qualified is considered a substitution of previously forfeited or relinquished deferred compensation" compensation under Treas. Reg. Section 409A of 1.409A-3(f), the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits under this Agreement shall be payable only upon paid at the Executive's "separation from service." The determination of whether same time and when a separation from service has occurred shall be made in accordance with on the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend same schedule that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute original deferred compensation subject to Section 409A of the Code but do not satisfy would have been paid, unless an exemption from, or the conditions of, such Section. applies.
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Section 409a. (a)
Anything in this Agreement to the contrary notwithstanding, if at the time General. Any provisions of the
Executive's separation from service within the meaning of Section 409A of the Code, the Company determines Agreement that
the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service... would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy and the regulations and other authoritative guidance issued thereunder ("Section 409A"), are intended to comply with all applicable requirements of Section 409A, or an exemption from, from the application of Section 409A, and shall be interpreted and administered accordingly. Notwithstanding any provision of this Agreement to the contrary, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amount or benefit that constitutes "non-qualified deferred compensation" (within the conditions of, meaning of Section 409A) upon or following a termination of the Executive's employment unless such Section. termination is also a "separation from service" (as defined under Section 409A) (a "Separation from Service") and, for purposes of any such provision, references herein to a "termination," "termination of employment" or like terms shall mean a Separation from Service, if applicable. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. (b) Specified Employee. Notwithstanding any provision of this Agreement to the contrary, if any payment or other benefit provided hereunder would be subject to additional taxes and interest under Section 409A because the timing of such payment is not delayed as required by Section 409A for a "specified employee" (as defined under Section 409A), then if the Executive is on the date of Executive's Separation from Service a specified employee, any such payment or benefit that Executive would otherwise be entitled to receive during the first six months following the Separation from Service shall be accumulated and paid in a lump sum within ten (10) days after the date that is six months following the date of the Separation from Service, or such earlier date upon which such amount can be paid under Section 409A without being subject to such additional taxes and interest such as, for example, upon the Executive's death. Any remaining payments due to Executive under this Agreement shall be paid as otherwise provided in this Agreement. 24 F. D. Murrell Agreement (c) Reimbursements and In-Kind Benefits. Notwithstanding any provision of this Agreement to the contrary, any reimbursements or in-kind benefits provided under this Agreement that constitute "nonqualified deferred compensation" within the meaning of Section 409A shall be paid to Executive 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, other than medical expenses referred to in Section 105(b) of the Code, and Executive's right to reimbursement under this Agreement will not be subject to liquidation or exchange for other benefits. (d) No Section 409A Representations. Notwithstanding the foregoing, the Company makes no representations, warranties, or guarantees regarding the tax consequences of this Agreement, or any payments made hereunder, under Section 409A or otherwise, and has advised the Executive to consult with Executive's own tax advisor.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, contained in this Agreement, if at the time of
the Executive's separation from service within the meaning of Section 409A of the
Code, Internal Revenue Code of 1986, as amended (the "Code"), the Company determines that
the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that
the Executive becomes entitled to under this
...Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) (i) six months and one day after the Executive's separation from service, or (B) (ii) Executive's death (the "Six Month Delay Rule"). (b) For purposes of this Section 10, amounts payable under the Executive's death. If any such delayed cash payment is Agreement should not be considered a deferral of compensation subject to Section 409A to the extent provided in Treasury Regulation Section 1.409A-1(b)(4) (i.e., short-term deferrals), Treasury Regulation Section 1.409A-1(b)(9) (i.e., separation pay plans, including the exception under subparagraph (iii)), and other applicable provisions of Treasury Regulations Sections 1.409A-1 through A-6. (c) To the extent that the Six Month Delay Rule applies to payments otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, the Six Month Delay Rule, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) (d) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and Six Month Delay Rule applies to the extent that provision of benefits (including, but not limited to, life insurance and medical insurance), such payment or benefit is payable upon coverage shall nonetheless be provided to Executive during the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a first six months following his separation from service has occurred (the "Six Month Period"), provided that, during such Six-Month Period, Executive pays to the Company, on a monthly basis in advance, an amount equal to the Monthly Cost (as defined below) of such benefit coverage. The Company shall be reimburse Executive for any such payments made by Executive in accordance with a lump sum not later than thirty (30) days following the presumptions set forth sixth month anniversary of Executive's separation from service. For purposes of this subparagraph, "Monthly Cost" means the minimum dollar amount which, if paid by Executive on a monthly basis in Treasury Regulation Section 1.409A-1(h). (d) advance, results in Executive not being required to recognize any federal income tax on receipt of the benefit coverage during the Six Month Period. 7 (e) The parties Parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties Parties agree that this Agreement may be amended, as reasonably requested by either party, Party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) Party. (f) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, contained in this Agreement, if at the time of
the Executive's separation from service within the meaning of Section 409A of the
Code, Internal Revenue Code of 1986, as amended (the "Code"), the Company determines that
the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that
the Executive becomes entitled to under this
...Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) (i) six months and one day after the Executive's separation from service, or (B) (ii) Executive's death (the "Six Month Delay Rule"). 4 (b) For purposes of this Section 10, amounts payable under the Executive's death. If any such delayed cash payment is Agreement should not be considered a deferral of compensation subject to Section 409A to the extent provided in Treasury Regulation Section 1.409A-1(b)(4) (i.e., short-term deferrals), Treasury Regulation Section 1.409A-1(b)(9) (i.e., separation pay plans, including the exception under subparagraph (iii)), and other applicable provisions of Treasury Regulations Sections 1.409A-1 through A-6. (c) To the extent that the Six Month Delay Rule applies to payments otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, the Six Month Delay Rule, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) (d) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and Six Month Delay Rule applies to the extent that provision of benefits (including, but not limited to, life insurance and medical insurance), such payment or benefit is payable upon coverage shall nonetheless be provided to Executive during the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a first six months following his separation from service has occurred (the "Six Month Period"), provided that, during such Six-Month Period, Executive pays to the Company, on a monthly basis in advance, an amount equal to the Monthly Cost (as defined below) of such benefit coverage. The Company shall be reimburse Executive for any such payments made by Executive in accordance with a lump sum not later than thirty (30) days following the presumptions set forth sixth month anniversary of Executive's separation from service. For purposes of this subparagraph, "Monthly Cost" means the minimum dollar amount which, if paid by Executive on a monthly basis in Treasury Regulation Section 1.409A-1(h). (d) advance, results in Executive not being required to recognize any federal income tax on receipt of the benefit coverage during the Six Month Period. (e) The parties Parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties Parties agree that this Agreement may be amended, as reasonably requested by either party, Party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) Party. (f) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a.
(a) Anything in a. The parties agree that this Agreement
shall be interpreted to comply with or be exempt from Section 409A of the Code and the regulations and guidance promulgated thereunder to the
contrary notwithstanding, if at extent applicable (collectively, "Section 409A"), and all provisions of this Agreement shall be construed in a manner consistent with the
time requirements for avoiding taxes or penalties under Section 409A. In no event whatsoever will the Company be liable for any add...itional tax, interest or penalties that may be imposed on Executive under Section 409A or any damages for failing to comply with Section 409A. b. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the Executive's separation payment of any amounts or benefits considered "nonqualified deferred compensation" under Section 409A upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment," the Code, the Company determines that Termination Date or like terms shall mean "separation from service." If the Executive is deemed on the date of termination to be a "specified employee" within the meaning of that term under Section 409A(a)(2)(B)(i) 409A(a)(2)(B) of the Code, then with regard to the extent any payment or the provision of any benefit that the Executive becomes entitled to is considered nonqualified deferred compensation under this Agreement or otherwise Section 409A payable on account of the Executive's separation a "separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, service," no such payment shall not be payable and such or benefit shall not be made or provided until the date that is prior to the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provision, and the balance such "separation from service" of the Executive, and (B) the date of the Executive's death (the "Delay Period"). All payments and benefits delayed pursuant to this Section 10 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to the Executive in a lump sum without interest, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. c. For purposes of Section 409A, the Executive's right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be made within 10 business days following the date of termination"), the actual date of payment within the specified period shall be within the sole discretion of the Company. If the twenty-nine (29) day period (or fifty-three (53) day period, as applicable) following the Termination Date ends in the calendar year following the year that includes such Termination Date, then payment of any amount that is conditioned upon the execution of the Release Agreement and is subject to Section 409A shall not be paid until the first day of the calendar year following the year that includes the Termination Date, regardless of when the Release Agreement is signed. All expenses or other reimbursements as provided herein shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement the Company's policies in effect from time to time, but in any event shall be provided by the Company made on or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the expense was incurred. The amount of in-kind benefits provided Executive; no such reimbursement or reimbursable expenses incurred eligible for reimbursement in one any taxable year shall not in any way affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year; and the Executive's right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange exchanged for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. benefit.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, contained in this Agreement, if at the time of
the Executive's separation from service within the meaning of Section 409A of the
Code, Internal Revenue Code of 1986, as amended (the "Code"), the Company determines that
the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that
the Executive becomes entitled to under this
...Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) (i) six months and one day after the Executive's separation from service, or (B) (ii) Executive's death (the "Six Month Delay Rule"). (b) For purposes of this Section 10, amounts payable under the Executive's death. If any such delayed cash payment is Agreement should not be considered a deferral of compensation subject to Section 409A to the extent provided in Treasury Regulation Section 1.409A-1(b)(4) (i.e., short-term deferrals), Treasury Regulation Section 1.409A-1(b)(9) (i.e., separation pay plans, including the exception under subparagraph (iii)), and other applicable provisions of Treasury Regulations Sections 1.409A-1 through A-6. (c) To the extent that the Six-Month Delay Rule applies to payments otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, the Six-Month Delay Rule, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) 6 (d) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and Six Month Delay Rule applies to the extent that provision of benefits (including, but not limited to, life insurance and medical insurance), such payment or benefit is payable upon coverage shall nonetheless be provided to Executive during the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a first six months following his separation from service has occurred (the "Six Month Period"), provided that, during such Six-Month Period, Executive pays to the Company, on a monthly basis in advance, an amount equal to the Monthly Cost (as defined below) of such benefit coverage. The Company shall be reimburse Executive for any such payments made by Executive in accordance with a lump sum not later than thirty (30) days following the presumptions set forth sixth month anniversary of Executive's separation from service. For purposes of this subparagraph, "Monthly Cost" means the minimum dollar amount which, if paid by Executive on a monthly basis in Treasury Regulation Section 1.409A-1(h). (d) advance, results in Executive not being required to recognize any federal income tax on receipt of the benefit coverage during the Six-Month Period. (e) The parties Parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties Parties agree that this Agreement may be amended, as reasonably requested by either party, Party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) Party. (f) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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