Saks Fifth Avenue 2010 Annual Report Download - page 103

4
will, to the extent necessary, delay making the payment or providing the benefit until the earliest date on which the
Company in good faith determines that the payment can be paid or the benefit can be provided without causing the
payment or the benefit to be subject to additional taxes imposed by Section 409A of the Code. Notwithstanding any other
provision of this Agreement to the contrary, to the extent the Executive is considered a “key employee” (as defined in Code
Section 416(i) without regard to Section 416(i)(5)) of a company that is publicly traded on an established securities market
or otherwise, distributions will be delayed six months after the separation from service in accordance with Code
Section 409A(a)(2)(B)(i), but not later than the Executive’s death.
(iii) The Agreement is intended to comply with the requirements of Section 409A or an exemption or exclusion therefrom and,
with respect to amounts that are subject to Section 409A, shall in all respects be administered in accordance with
Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Section 409A
shall be paid under the applicable exception. Each payment of compensation under this Agreement shall be treated as a
separate payment of compensation for purposes of Section 409A. All payments to be made upon a termination of
employment under this Agreement may only be made upon a “separation from service” under Section 409A. In no event
may the Executive, directly or indirectly, designate the calendar year of any payment under this Agreement. Any tax gross-
up payment made pursuant to this Agreement shall be made no later than the end of Executive’s taxable year next
followin
g
Executive’s taxable
y
ear in which Executive remits the related taxes.
(iv) Notwithstanding anything to the contrary in this Agreement, all reimbursements and in-kind benefits provided under this
Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable,
the requirement that (a) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter
period of time specified in this Agreement); (b) 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, except, if such benefits consist of the reimbursement of expenses referred to in Section 105(b)
of the Code, a maximum, if provided under the terms of the plan providing such medical benefit, may be imposed on the
amount of such reimbursements over some or all of the period in which such benefit is to be provided to the Executive as
described in Treasury Regulation Section 1.409A-3(i)(1)(iv)(B); (c) the reimbursement of an eligible expense will be made
no later than the last day of the calendar year following the year in which the expense is incurred, provided that the
Executive shall have submitted an invoice for such fees and expenses at least ten (10) days before the end of the calendar
year next following the calendar year in which such fees and expenses were incurred; and (d) the right to reimbursement or
in-kind benefits is not sub
j
ect to li
q
uidation or exchan
g
e for another benefit.
(v) Notwithstanding anything to the contrary in this Agreement, payment of any amounts, including, but not limited to, salary
and bonuses, will be subject to, and payable in accordance with, any prior deferral elections made with respect to such
amounts under the Com
p
an
y
’s Deferred Com
p
ensation Plan (as amended and restated effective Januar
y
1, 2009).”