Saks Fifth Avenue 2010 Annual Report Download - page 108

which the Disability occurred are paid to other senior executives of the Company. If the Executive’s disability continues after
the end of such 12-month period, the Company may terminate this Agreement and the Executive’s employment for disability
(“Disability Termination”). Disputes regarding the existence of the Executive’s disability shall be resolved by the determination
of a physician selected by the Board who is reasonably acceptable to the Executive. The Executive shall submit to appropriate
medical examinations for purposes of determining disability. Upon a Disability Termination, the Executive shall be entitled to
(a) the payments in the amounts and at the times described in Sections 4(a)(i)(A), (B) and (C) hereof and described in Section 4
(b)(ii)(B) hereof; (b) the Executive’s unexercisable stock options, unvested shares of restricted stock and unvested performance
shares shall vest as described in Section 4(b)(ii)(E) hereof and the unvested Special Equity Awards shall vest as described in
Section 4(a)(ii)(D)(3) hereof; and (c) all other benefits in accordance with Section 3(e) of this Agreement that would be payable
upon such Disability Termination. Upon a Disability Termination, the Company’s obligations in Sections 11, 13(f) and 13(h) of
this Agreement, and the Executive’s obligations in Sections 11, 12, and 13(h) of this Agreement, shall continue in effect in
accordance with their respective terms.”
“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 following Executive’s taxable year in which Executive
remits the related taxes.
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
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6. Section 10 of the Employment Agreement is amended by adding three new paragraphs to the end of the Section which shall
p
rovide as follows: