Benefits. You will be entitled to participate in any and all benefit programs that TerraForm establishes and makes available to its employees from time to time, provided that you are eligible under (and subject to all provisions of) the plan documents governing those programs. TerraForm will also reimburse you for your two daughters’ school fees in an amount up to $20,000 per year (and will gross-up any such reimbursement amount for taxes withheld on such reimbursements, with a true-up between the parties in the following tax year for any additional or lower amounts actually incurred with respect to the reimbursement) for each daughter, upon receipt of documentation in accordance with TerraForm policy.
3. General Provisions
(a)Not a Contract of Employment; No Assignment. You and TerraForm acknowledge that this letter does not constitute a contract of employment and that your employment continues to be with SunEdison. This letter is personal to you and you will not have any right to transfer (other than to your beneficiaries in case of your death), assign, pledge, alienate or create a lien upon this letter or any rights hereunder. Any payments under this letter are unfunded and unsecured and payable out of the general funds of TerraForm.
(b)Employment by TerraForm Global, Inc. Should you become employed by TerraForm Global, Inc. (“Global”), you and TerraForm agree, and Global also agrees, that this letter agreement will be assigned by TerraForm to Global, and Global shall assume any financial obligations of TerraForm hereunder not already performed by TerraForm.
(c)Amendments and Waivers. Any provision of this letter may be amended or waived but only if the amendment or waiver is in writing and signed by TerraForm (and, in the case of an amendment, by you).
(d)Taxes. Any payments hereunder will be subject to applicable taxes and withholdings.
(e)Section 409A. Any payments made over time are to be treated as a series of separate payments for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”). If and to the extent any portion of any payment, compensation or other benefit provided to you in connection with your employment termination is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A and you are a specified employee as defined in Section 409A(a)(2)(B)(i), as determined by your employer in accordance with its procedures, by which determination you hereby agree that you are bound, such portion of the payment, compensation or other benefit shall not be paid before the earlier of (i) the expiration of the six month period measured from the date of your “separation from service” (as determined under Section 409A) or (ii) the tenth day following the date of your death following such separation from service (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to you during the period between the date of separation from service and the New Payment Date shall be paid to you in a lump sum in the first payroll period beginning after such New Payment Date, and any remaining payments will be paid on their original schedule. This Agreement is intended to comply with the provisions of Section 409A and this Agreement shall, to the extent practicable, be construed in accordance therewith. Terms defined in this Agreement will have the meanings given such terms under Section 409A if and to the extent required to comply with Section 409A. In any event, TerraForm makes no representations or warranty and will have no liability to you or any other person if any provisions of or payments under this Agreement are determined to constitute deferred compensation subject to Code Section 409A but not to satisfy the conditions of that section.