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Code Section 409a Compliance Clause Example with 29 Variations from Business Contracts
This page contains Code Section 409a Compliance clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Code Section 409a Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with Code Section 409A or comply with an exemption from the application of Code Section 409A and, accordingly, all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. (b) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits i...n any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service" (within the meaning of Code Section 409A) and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, references to a "termination" or "termination of employment" or like references shall mean separation from service. If the Executive is deemed on the date of separation from service with the Company to be a "specified employee", within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six- month period measured from the date of the Executive's separation from service or (ii) the date of the Executive's death. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed payments are made pursuant to the next sentence. On the first day of the seventh month following the date of the Executive's separation from service or, if earlier, on the date of the Executive's death, all payments delayed pursuant to this Section 8(c) (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 to the Executive in a lump sum, 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. (d) With regard to any provision herein that provides for reimbursement of expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in- kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the -10- arrangement is in effect. Except as otherwise allowed under Code Section 409A, all reimbursements shall be reimbursed in accordance with the Company's reimbursement policies but in no event later than the calendar year following the calendar year in which the related expense is incurred. (e) If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment shall be treated as a separate payment. (f) When, if ever, a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be made within ten days following the date of termination"), the actual date of payment within the specified period shall be within the sole discretion of the Company. (g) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A otherwise fails to comply with, or be exempt from, the requirements of Code Section 409A.
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PINNACLE BANKSHARES CORP contract
Variations of a "Code Section 409a Compliance" Clause from Business Contracts
Code Section 409a Compliance. (a) The intent of the parties is that payments and benefits under this Agreement be exempt from, or comply with with, Internal Revenue Code Section 409A or comply with an exemption from and the application of Code regulations and guidance promulgated thereunder (collectively "Code Section 409A 409A") and, accordingly, all provisions of to the maximum extent permitted, this Agreement shall be construed in a manner interpreted consistent with the requirements for avoiding taxes or penalties under ...Code Section 409A. (b) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) such intent. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service" (within within the meaning of Code Section 409A) 409A and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, Agreement, references to a "termination" or "termination," "termination of employment" or like references terms shall mean separation "separation from service. If service." In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive is deemed on the date of separation from service with the Company to be a "specified employee", within the meaning of that term under by Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time 409A or damages for failing to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance comply with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six- month period measured from the date of the Executive's separation from service or (ii) the date of the Executive's death. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed payments are made pursuant to the next sentence. On the first day of the seventh month following the date of the Executive's separation from service or, if earlier, on the date of the Executive's death, all payments delayed pursuant to this Section 8(c) (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 to the Executive in a lump sum, 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. (d) With regard to any provision herein that provides for reimbursement of expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in- kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the -10- arrangement is in effect. Except as otherwise allowed under Code Section 409A, all reimbursements shall be reimbursed in accordance with the Company's reimbursement policies but in no event later than the calendar year following the calendar year in which the related expense is incurred. (e) If under this Agreement, an amount is to be paid in two or more installments, for 409A. For purposes of Code Section 409A, each the Executive's right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate payment. (f) When, if ever, a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be made within ten days following the date of termination"), the actual date of payment within the specified period shall be within the sole discretion of the Company. (g) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A otherwise fails to comply with, or be exempt from, the requirements of Code Section 409A. distinct payments.
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YRC Worldwide Inc. contract
Code Section 409a Compliance. (a) The intent 11.1 This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the parties is Internal Revenue Code of 1986 as amended, and any regulations and Treasury guidance promulgated thereunder (collectively, "Section 409A of the Code"). 11.2 Company and Executive agree that payments they will execute any and benefits all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the provisions of Section 409A ...of the Code. 11.3 The preceding provisions, however, shall not be construed as a guarantee by Company of any particular tax effect to Executive under this Agreement. No Company Group Member shall be liable to Executive for any payment made under this Agreement comply with Code which is determined to result in an additional tax, penalty or interest under Section 409A or comply with of the Code, nor for reporting in good faith any payment made under this Agreement as an exemption from the application of Code amount includible in gross income under Section 409A and, accordingly, all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. (b) Neither the Executive nor the Company shall take any action to accelerate or delay the payment Code. 11.4 For purposes of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service" (within Code, the meaning of Code Section 409A) and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, references right to a "termination" or "termination series of employment" or like references shall mean separation from service. If the Executive is deemed on the date of separation from service with the Company to be a "specified employee", within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six- month period measured from the date of the Executive's separation from service or (ii) the date of the Executive's death. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed installment payments are made pursuant to the next sentence. On the first day of the seventh month following the date of the Executive's separation from service or, if earlier, on the date of the Executive's death, all payments delayed pursuant to this Section 8(c) (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 to the Executive in a lump sum, 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. (d) treated as a right to a series of separate payments. 11.5 With regard respect to any provision herein that provides for reimbursement of expenses or any provision of in-kind benefits, except as permitted by Code Section 409A, (i) benefits to Executive specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the right to following conditions: (ii) the expenses eligible for reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in- kind benefits, in-kind benefits provided during any in one taxable year shall not affect the expenses eligible for reimbursement, reimbursement or the amount of in-kind benefits to be provided, provided in any other taxable year, provided that except for any medical reimbursement arrangements providing for the foregoing clause (ii) shall not be violated with regard reimbursement of expenses referred to expenses reimbursed under any arrangement covered by in Section 105(b) of the Code solely because Code; (ii) the reimbursement of an eligible expense shall be made no later than the end of the year following the year in which such expenses are expense was incurred; and (iii) the right to reimbursement or in-kind benefits shall not be subject to a limit related liquidation or exchange for another benefit. -11- 11.6 Notwithstanding anything in this Agreement to the period contrary, if a payment obligation arises on account of Executive's separation from service while Executive is a "specified employee" as described in Section 409A of the -10- arrangement is in effect. Except Code and the Treasury Regulations thereunder and as otherwise allowed under Code Section 409A, all reimbursements shall be reimbursed determined by Company in accordance with its procedures, by which determination Executive is bound, any payment of "deferred compensation" (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the Company's reimbursement policies but exemptions in no event later than the calendar year following the calendar year in which the related expense is incurred. (e) If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment shall be treated as a separate payment. (f) When, if ever, a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) shall be made within ten days on the first (1st) business day of the seventh (7th) month following the date of termination"), Executive's separation from service, or, if earlier, within fifteen (15) days after the actual date of payment within the specified period shall be within the sole discretion appointment of the Company. (g) Notwithstanding any personal representative or executor of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A otherwise fails to comply with, or be exempt from, the requirements of Code Section 409A. Executive's estate following Executive's death.
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Code Section 409a Compliance. (a) The intent 11.1 This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the parties is Internal Revenue Code of 1986 as amended, and any regulations and Treasury guidance promulgated thereunder (collectively, "Section 409A of the Code"). 11.2 The Company and Executive agree that payments they will execute any and benefits all amendments to this Agreement as they mutually agree in good faith may be necessary to ensure compliance with the provisions of Section 4...09A of the Code. 11.3 The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Executive under this Agreement. No Company Group Member shall be liable to Executive for any payment made under this Agreement comply with Code which is determined to result in an additional tax, penalty or interest under Section 409A or comply with of the Code, nor for reporting in good faith any payment made under this Agreement as an exemption from the application of Code amount includible in gross income under Section 409A and, accordingly, all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. (b) Neither the Executive nor the Company shall take any action to accelerate or delay the payment Code. 11.4 For purposes of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service" (within Code, the meaning of Code Section 409A) and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, references right to a "termination" or "termination series of employment" or like references shall mean separation from service. If the Executive is deemed on the date of separation from service with the Company to be a "specified employee", within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six- month period measured from the date of the Executive's separation from service or (ii) the date of the Executive's death. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed installment payments are made pursuant to the next sentence. On the first day of the seventh month following the date of the Executive's separation from service or, if earlier, on the date of the Executive's death, all payments delayed pursuant to this Section 8(c) (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 to the Executive in a lump sum, 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. (d) treated as a right to a series of separate payments. 11.5 With regard respect to any provision herein that provides for reimbursement of expenses or any provision of in-kind benefits, except as permitted by Code Section 409A, (i) benefits to Executive specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the right to following conditions: (ii) the expenses eligible for reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in- kind benefits, in-kind benefits provided during any in one taxable year shall not affect the expenses eligible for reimbursement, reimbursement or the amount of in-kind benefits to be provided, provided in any other taxable year, provided that except for any medical reimbursement arrangements providing for the foregoing clause (ii) shall not be violated with regard reimbursement of expenses referred to expenses reimbursed under any arrangement covered by in Section 105(b) of the Code solely because Code; (ii) the reimbursement of an eligible expense shall be made no later than the end of the year following the year in which such expenses are expense was incurred; and (iii) the right to reimbursement or in-kind benefits shall not be subject to a limit related liquidation or exchange for another benefit. -15- 11.6 Notwithstanding anything in this Agreement to the period contrary, if a payment obligation arises on account of Executive's separation from service while Executive is a "specified employee" as described in Section 409A of the -10- arrangement is in effect. Except Code and the Treasury Regulations thereunder and as otherwise allowed under Code Section 409A, all reimbursements shall be reimbursed determined by the Company in accordance with its procedures, by which determination Executive is bound, any payment of "deferred compensation" (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the Company's reimbursement policies but exemptions in no event later than the calendar year following the calendar year in which the related expense is incurred. (e) If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment shall be treated as a separate payment. (f) When, if ever, a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) shall be made within ten days on the first (1st) business day of the seventh (7th) month following the date of termination"), Executive's separation from service, or, if earlier, within fifteen (15) days after the actual date of payment within the specified period shall be within the sole discretion appointment of the Company. (g) Notwithstanding any personal representative or executor of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A otherwise fails to comply with, or be exempt from, the requirements of Code Section 409A. Executive's estate following Executive's death.
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Code Section 409a Compliance. (a) The intent 11.1 This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the parties is that payments Internal Revenue Code of 1986 as amended, and benefits any regulations and Treasury guidance promulgated thereunder (collectively, "Section 409A of the Code"). 11.2 The Company shall not be liable to Executive for any payment made under this Agreement comply with Code which is determined to result in an additional tax, penalty or interest under Section 409A or ...comply with of the Code, nor for reporting in good faith any payment made under this Agreement as an exemption from the application of Code amount includible in gross income under Section 409A and, accordingly, all provisions of this Agreement shall be construed the Code. 11.3 Each payment in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. (b) Neither the Executive nor the Company series of payments hereunder shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) A termination of employment shall not be deemed to have occurred be a separate payment for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service" (within the meaning of Code Section 409A) and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, references to a "termination" or "termination of employment" or like references shall mean separation from service. If the Executive is deemed on the date of separation from service with the Company to be a "specified employee", within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard Code. 11.4 With respect to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six- month period measured from the date of the Executive's separation from service or (ii) the date of the Executive's death. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed payments are made pursuant to the next sentence. On the first day of the seventh month following the date of the Executive's separation from service or, if earlier, on the date of the Executive's death, all payments delayed pursuant to this Section 8(c) (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 to the Executive in a lump sum, 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. (d) With regard to any provision herein that provides for reimbursement of expenses or any provision of in-kind benefits, except as permitted by Code Section 409A, (i) benefits to Executive specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the right to following conditions: (a) the expenses eligible for reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in- kind benefits, in-kind benefits provided during any in one taxable year shall not affect the expenses eligible for reimbursement, reimbursement or the amount of in-kind benefits to be provided, provided in any other taxable year, provided that except for any medical reimbursement arrangements providing for the foregoing clause (ii) shall not be violated with regard reimbursement of expenses referred to expenses reimbursed under any arrangement covered by in Section 105(b) of the Code solely because Code; (b) the reimbursement of an eligible expense shall be made no later than the end of the year following the year in which such expenses are expense was incurred; and (c) the right to reimbursement or in-kind benefits shall not be subject to a limit related liquidation or exchange for another benefit. -15- 11.5 Notwithstanding anything in this Agreement to the period contrary, if a payment obligation arises on account of Executive's separation from service while Executive is a "specified employee" as described in Section 409A of the -10- arrangement is in effect. Except Code and the Treasury Regulations thereunder and as otherwise allowed under Code Section 409A, all reimbursements shall be reimbursed determined by the Company in accordance with its procedures, by which determination Executive is bound, any payment of "deferred compensation" (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the Company's reimbursement policies but exemptions in no event later than the calendar year following the calendar year in which the related expense is incurred. (e) If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment shall be treated as a separate payment. (f) When, if ever, a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) shall be made within ten days on the first (1st) business day of the seventh (7th) month following the date of termination"), Executive's separation from service, or, if earlier, within fifteen (15) days after the actual date of payment within the specified period shall be within the sole discretion appointment of the Company. (g) personal representative or executor of Executive's estate following Executive's death. 11.6 Notwithstanding any of anything contained herein to the provisions of this Agreement, the Company contrary, Executive shall not be liable considered to have terminated employment with the Executive if any payment or benefit which is to be provided pursuant to Company for purposes of this Agreement and which is unless Executive would be considered deferred compensation subject to have incurred a "termination of employment" from the Company within the meaning of Treasury Regulation §1.409A-1(h)(1)(ii). In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Executive by Section 409A otherwise fails of the Code or damages for failing to comply with, or be exempt from, with Section 409A of the requirements of Code Section 409A. Code.
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Parasol Investments Corp contract
Code Section 409a Compliance. (a) The intent of the parties Parties is that payments and benefits under this Agreement comply with Code with, or be exempt from, Section 409A or comply with an exemption from of the application Internal Revenue Code of Code 1986, as amended (the "Code") and the regulations and guidance promulgated thereunder (collectively "Code Section 409A 409A") and, accordingly, all provisions of to the maximum extent permitted, this Agreement shall be construed in a manner consistent with the requirements ...for avoiding taxes or penalties under Code Section 409A. (b) Neither the Executive nor the Company shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) interpreted and administered accordingly. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following a termination of employment that are considered "nonqualified deferred compensation" under Code Section 409A unless such termination is also a "separation from service" (within within the meaning of Code Section 409A) 409A and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, Agreement, references to a "termination" or "termination," "termination of employment" or like references terms shall mean separation "separation from service. If the Executive is deemed on the date of separation from service with the Company to be a "specified employee", within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six- month period measured from the date of the Executive's separation from service or (ii) the date of the Executive's death. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed payments are made pursuant to the next sentence. On the first day of the seventh month following the date of the Executive's separation from service or, if earlier, on the date of the Executive's death, all payments delayed pursuant to this Section 8(c) (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 to the Executive in a lump sum, 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. (d) service." With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in- kind in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with without regard to expenses reimbursed under any arrangement covered by Code Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the -10- arrangement is in effect. Except as otherwise allowed under Code Section 409A, all reimbursements effect and (iii) such payments shall be reimbursed in accordance with made on or before the Company's reimbursement policies but in no event later than the calendar last day of Jones's taxable year following the calendar taxable year in which the related expense is incurred. (e) If under this Agreement, an amount is to be paid in two or more installments, for occurred. For purposes of Code Section 409A, each Jones's right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate payment. (f) When, if ever, 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 ten "within sixty (60) days following the date of termination"), the actual date of payment within the specified period shall be within the sole discretion of the Company. (g) Notwithstanding any of If Jones is a specified employee within the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Section 409A otherwise fails to comply with, or be exempt from, the requirements meaning of Code Section 409A. 409A(a)(2)(B)(i) and would receive any payment sooner than 6 months after Jones's "separation from service" that, absent the application of this Section 9, would be subject to additional tax imposed pursuant to Code Section 409A as a result of such status as a specified employee, then such payment shall instead be payable on the date that is the earliest of (i) 6 months after Jones's "separation from service," or (ii) Jones's death.
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Blink Charging Co. contract
Code Section 409a Compliance. (a) The intent of 6.1 Notwithstanding anything herein to the parties is contrary, this Agreement and the Supplemental Retirement Agreement are intended to be interpreted and operated to the fullest extent possible so that the payments and benefits under this Agreement comply with Code and the Supplemental Retirement Agreement either shall be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder ("Cod...e Section 409A") or shall comply with an exemption from the application of Code Section 409A and, accordingly, all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding of such provision. 6.2 To the extent required to avoid the imposition of additional taxes or and penalties under Code Section 409A. (b) Neither 409A, amounts payable under this Agreement or the Executive nor the Company shall take any action to accelerate or delay the payment Supplemental Retirement Agreement on account of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) A termination of employment shall not only be deemed to have occurred for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following paid if Executive experiences a termination of employment "separation from service" as defined in Code Section 409A unless such termination is also a "separation from service" (within within the meaning of Code Section 409A) 409A and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, Agreement, references to a "termination" or "termination," "termination of employment" or like references terms shall mean separation "separation from service. service." 2 6.3 For purposes of this Agreement and the Supplemental Retirement Agreement, the right to a series of installment payments shall be treated as a right to a series of separate payments within the meaning of the Code Section 409A. 6.4 If the Executive is deemed on the date of separation from service with the Company to be a "specified employee", employee" within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration 409A as of the six- month period measured from the date Separation Date, no amount that constitutes a deferral of the compensation which is payable on account of Executive's separation from service or (ii) shall be paid to Executive before the date of the Executive's death. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then (the "Delayed Payment Date") which shall be reimbursed by the Company thereafter when delayed payments are made pursuant to the next sentence. On (a) the first day of the seventh month following after the date of the Executive's separation from service or, if earlier, on or (b) the date of the Executive's death, all payments delayed pursuant to death following such separation from service, if earlier. All such amounts that would, but for this Section 8(c) (whether they would have otherwise been 6.4, become payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed prior to the Executive in a lump sum, Delayed Payment Date will be accumulated and any remaining payments and benefits due under this Agreement shall be paid on or provided in accordance with about the normal payment dates specified for them herein. (d) With regard Delayed Payment Date. 6.5 Notwithstanding anything herein to any provision herein that provides for the contrary, the reimbursement of expenses or in-kind benefits, except as permitted by Code Section 409A, (i) benefits provided pursuant to this Agreement shall be subject to the right to following conditions: (a) the expenses eligible for reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in- kind benefits, provided during any in one taxable year shall not affect the expenses eligible for reimbursement, reimbursement or in-kind benefits to be provided, in any other taxable year, provided that year; (b) the foregoing clause (ii) reimbursement of eligible expenses or in-kind benefits shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are made promptly, subject to a limit related to the period the -10- arrangement is in effect. Except as otherwise allowed under Code Section 409A, all reimbursements shall be reimbursed in accordance with the Company's reimbursement policies applicable policies, but in no event later than the calendar end of the year following after the calendar year in which such expense was incurred; and (c) the related expense is incurred. (e) If right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit 6.6 The Company intends that income provided to Executive pursuant to this Agreement and the Supplemental Retirement Agreement will not be subject to taxation under Section 409A of the Code. The provisions of this Agreement, an amount is to Agreement and the Supplemental Retirement Agreement shall be paid interpreted and construed in two or more installments, for purposes favor of satisfying any applicable requirements of Code Section 409A, each installment shall be treated as a separate payment. (f) When, if ever, a payment under 409A. However, the Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement specifies a payment period or the Supplemental Retirement Agreement. In any event, except for the Company's responsibility to withhold applicable income and employment taxes from compensation paid or provided to Executive and to make all payments in accordance with reference to a number of days (e.g., "payment shall be made within ten days following the date of termination"), the actual date of payment within the specified period shall be within the sole discretion of the Company. (g) Notwithstanding any of the provisions terms of this Agreement and the Supplemental Retirement Agreement, the Company shall not be liable responsible for the payment of any applicable taxes on compensation paid or provided to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred or the Supplemental Retirement Agreement. If Executive notifies the Company (with specificity as to the reason therefor) that Executive believes that any provision of this Agreement or the Supplemental Retirement Agreement (or of any award of compensation, including equity compensation subject or benefits) would cause Executive to incur any additional tax or interest under Code Section 409A otherwise fails and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with Executive, reform such provision to try to comply with, or with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be exempt from, made in good faith and shall, to the requirements maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and the Company of the applicable provision without violating the provisions of Code Section 409A.
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Seneca Foods Corporation contract
Code Section 409a Compliance. (a) The intent of the parties is that payments compensation and benefits under payable pursuant this Agreement are intended to be exempt from, or comply with with, as applicable, the requirements of Internal Revenue Code Section 409A and Department of Treasury regulations and other interpretative guidance issued thereunder, including without limitation any such regulations or comply with an exemption from other such guidance that may be issued after the application of Code Section 409A and, acco...rdingly, all provisions of Effective Date (collectively, "Section 409A"). To the extent applicable, this Agreement shall be construed interpreted in a manner consistent accordance with the requirements for avoiding taxes or penalties under Code Section 409A. (b) Neither the Executive nor the Company shall take Notwithstanding any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) A termination of employment shall not be deemed to have occurred for purposes of any other provision of this Agreement providing to the contrary, if Executive is a "specified employee" within the meaning of Section 409A, and a payment or benefit provided for the form in this Agreement would be subject to additional tax under Section 409A if such payment or timing of payment of any amounts or benefits upon or following a termination of employment unless such termination benefit is also a paid within six (6) months after Executive's "separation from service" (within the meaning of Code Section 409A) and, for purposes of any 409A), then such provision of payment or benefit required under this Agreement under which (and to shall not be paid (or commence) during the extent) deferred compensation subject to Code Section 409A is paid, references to a "termination" or "termination of employment" or like references shall mean six-month period immediately following Executive's separation from service. If the payment of any such amount is delayed in accordance with the previous sentence, then any payments or benefits that would otherwise have been made or provided during such six-month period and which would have incurred such additional tax under Section 409A shall instead be paid to Executive is deemed on in a lump-sum cash payment in the date of seventh month following Executive's separation from service with the Company to (or such earlier date upon which such amount can be paid under Section 409A without resulting in a "specified employee", prohibited distribution, including as a result of Executive's death). If Executive's termination of employment hereunder does not constitute a "separation from service" within the meaning of Section 409A, then any amounts payable hereunder on account of a termination of Executive's employment and which are subject to Section 409A (or any exemption therefrom that term under Code Section 409A(a)(2)(B) and using requires the identification methodology selected by the Company occurrence of a "separation from time service" as a condition to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit payment) shall not be made or provided prior to paid until Executive has experienced a "separation from service" within the earlier meaning of (i) the expiration of the six- month period measured from the date of the Executive's separation from service or (ii) the date of the Executive's death. Section 409A. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed payments are made pursuant to the next sentence. On the first day of the seventh month following the date of the Executive's separation from service or, if earlier, on the date of the Executive's death, all payments delayed pursuant to this Section 8(c) (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 to the Executive in a lump sum, 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. (d) With regard to any provision herein that provides for reimbursement of expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to addition, no reimbursement or in-kind benefits is not benefit shall be subject to liquidation or exchange for another benefit, benefit and (ii) the amount of expenses eligible available for reimbursement, or in- kind benefits, provided in-kind benefits provided, during any taxable calendar year shall not affect the expenses eligible amount available for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard a subsequent calendar year. Any reimbursement to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the -10- arrangement which Executive is in effect. Except as otherwise allowed under Code Section 409A, all reimbursements entitled hereunder shall be reimbursed in accordance with the Company's reimbursement policies but in made no event later than the last day of the calendar year following the calendar year in which such expenses were incurred. Notwithstanding any provision of this Agreement to the related expense is incurred. (e) If contrary, in the event that following the Effective Date, the Company or the Executive reasonably determines that any compensation or benefits payable under this Agreement, an amount is Agreement may be subject to Section 409A, the Company and Executive shall cooperate in good faith to adopt such amendments to this Agreement or adopt other policies or procedures (including amendments, policies and procedures with retroactive effect), or take any other actions that the Parties determine are reasonably necessary or appropriate to preserve the intended tax treatment of the compensation and benefits payable hereunder, including without limitation actions intended to (i) exempt the compensation and benefits payable under this Agreement from Section 409A, and/or (ii) comply with the requirements of Section 409A, provided, that this Section 15 does not, and shall not be construed so as to, create any obligation on the part of the Company or any affiliate or Executive to adopt any such amendments, policies or procedures or to take any other such actions. Notwithstanding anything herein to the contrary, neither the Company nor any of its affiliates shall have any liability to Executive or to any other person if the payments and benefits provided in this Agreement that are intended to be paid exempt from, or compliant with, Section 409A are not so exempt or compliant or for any taxes, interest or penalties imposed under Section 409A or any corresponding provision of state or local law. Each payment payable hereunder in two series of installments, including without limitation any payment of the Severance Payment or more installments, for purposes of Code Section 409A, each installment other benefits, shall be treated as a separate payment. (f) When, if ever, payment in a payment under this Agreement specifies a payment period with reference to a number series of days (e.g., "payment shall be made within ten days following the date of termination"), the actual date of payment payments within the specified period shall be within the sole discretion of the Company. (g) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement meaning of, and which is considered deferred compensation subject to Section 409A otherwise fails to comply with, or be exempt from, the requirements of Code for purposes of, Section 409A.
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Amedisys Inc contract
Code Section 409a Compliance. (a) The intent of the parties This Agreement is that payments and benefits under this Agreement intended to comply with Code Section 409A or (to the extent applicable) and the parties hereto agree to interpret this Agreement in the least restrictive manner necessary to comply with an exemption from therewith and without resulting in any increase in the application of Code Section 409A and, accordingly, all provisions of amounts owed hereunder by the Company. To the maximum extent possible, any s...everance owed under this Agreement shall be construed in a manner consistent with to fit within the requirements for avoiding taxes or penalties "short-term deferral rule" under Code Section 409A and/or the "two times two year" involuntary separation pay exception under Code Section 409A. (b) Neither the Executive nor the Company shall take Notwithstanding any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) A termination of employment shall not be deemed to have occurred for purposes of any other provision of this Agreement providing to the contrary, if the Executive is a "specified employee" within the meaning of Code Section 409A and the regulations issued thereunder, and a payment or benefit provided for in this Agreement would be subject to additional tax under Code Section 409A if such payment or benefit is paid within six (6) months after the form or timing of payment of any amounts or benefits upon or following a termination of employment unless such termination is also a Executive's "separation from service" (within the meaning of Code Section 409A) and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, references to a "termination" or "termination of employment" or like references shall mean separation from service. If the Executive is deemed on the date of separation from service with the Company to be a "specified employee", within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time to time, or if none, the default methodology, 409A), then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit required under this Agreement (i) shall not be made or provided prior paid (or commence) during the six-month period immediately following the Executive's separation from service and (ii) shall instead be paid to the Executive in a lump-sum cash payment on the earlier of (i) (A) the expiration first regular payroll date of the six- seventh month period measured from the date of following -22- the Executive's separation from service or (ii) (B) the date 10th business day following the Executive's death (but not earlier than such payment would have been made absent such death). If the Executive's termination of employment hereunder does not constitute a "separation from service" within the meaning of Code Section 409A, then any amounts payable hereunder on account of a termination of the Executive's death. In the case of benefits, however, employment and which are subject to Code Section 409A shall not be paid until the Executive may pay has experienced a "separation from service" within the cost meaning of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed payments are made pursuant to the next sentence. On the first day of the seventh month following the date of the Executive's separation from service or, if earlier, on the date of the Executive's death, all payments delayed pursuant to this Section 8(c) (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 to the Executive in a lump sum, 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. (d) With regard to any provision herein that provides for reimbursement of expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to 409A. In addition, no reimbursement or in-kind benefits is not benefit shall be subject to liquidation or exchange for another benefit, benefit and (ii) the amount of expenses eligible available for reimbursement, or in- kind benefits, provided in-kind benefits provided, during any taxable calendar year shall not affect the expenses eligible amount available for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that a subsequent calendar year. Any reimbursement to which the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the -10- arrangement Executive is in effect. Except as otherwise allowed under Code Section 409A, all reimbursements entitled hereunder shall be reimbursed in accordance with the Company's reimbursement policies but in made no event later than the last day of the calendar year following the calendar year in which such expenses were incurred. Notwithstanding anything herein to the related expense is incurred. (e) If under contrary, neither the Company nor any of its affiliates shall have any liability to the Executive or to any other person or entity if this Agreement, an amount is Agreement is, or if the payments and benefits provided in this Agreement that are intended to be paid in two exempt from or more installments, for purposes of compliant with Code Section 409A, each installment 409A are, not so exempt or compliant. Each payment payable hereunder shall be treated as a separate payment. (f) When, if ever, payment in a payment under this Agreement specifies a payment period with reference to a number series of days (e.g., "payment shall be made within ten days following the date of termination"), the actual date of payment payments within the specified period shall be within the sole discretion of the Company. (g) Notwithstanding any of the provisions of this Agreement, the Company shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement meaning of, and which is considered deferred compensation subject to Section 409A otherwise fails to comply with, or be exempt from, the requirements of for purposes of, Code Section 409A.
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Code Section 409a Compliance. (a) The intent This Agreement is intended to comply with the provisions of Section 409A of the parties is that payments and benefits under this Agreement comply with Code Section 409A or comply with an exemption from Code, and, to the application of Code Section 409A and, accordingly, all provisions of extent practicable, this Agreement shall be construed interpreted and administered in a manner consistent so that any amount or benefit payable hereunder shall be paid or provided in a manner that... is either exempt from or compliant with the requirements for avoiding taxes Section 409A of the Code and applicable Internal Revenue Service guidance and Treasury Regulations issued thereunder. Terms used in this Agreement shall have the meanings given such terms under Section 409A of the Code if, and to the extent required, in order to comply with Section 409A of the Code. (b) The payment schedules provided hereunder are intended to be exempt from or penalties to comply with the requirements of Section 409A of the Code and shall be interpreted consistently therewith. - 14 - (c) Any payments under Code Section 409A. (b) Neither 5 shall be made or shall commence only after the Executive nor has a "separation from service" with the Company, as defined under Section 409A of the Code and the guidance issued thereunder. (d) Notwithstanding anything to the contrary in this Agreement, to the extent required to avoid additional taxes and interest charged under Section 409A of the Code, if any of the Company's stock is publicly traded and the Executive is deemed to be a "specified employee" as determined by the Company shall take for purposes of Section 409A(a)(2)(B) of the Code, the Executive agrees that any action non-qualified deferred compensation payments due to accelerate or delay him under this Agreement in connection with a termination of employment that would otherwise have been payable at any time during the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) A six (6)-month period immediately following such termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following paid prior to, and shall instead be payable in a termination of employment unless such termination is also a "separation from service" (within the meaning of Code Section 409A) and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, references to a "termination" or "termination of employment" or like references shall mean separation from service. If the Executive is deemed lump sum on the date of separation from service with the Company to be a "specified employee", within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six- month period measured from the date of the Executive's separation from service or (ii) the date of the Executive's death. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed payments are made pursuant to the next sentence. On the first day of the seventh (7th) month following the date of the Executive's separation from service or, (or, if earlier, on the date Executive dies during such period, within 30 days after the Executive's death). (e) Each payment of termination benefits under Section 5 of this Agreement, including, without limitation, each installment payment, shall be considered a separate payment, as described in Treasury Regulations Section 1.409A-2(b)(2), for purposes of Section 409A of the Executive's death, all payments delayed pursuant Code. (f) Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any payment under this Agreement that constitutes "nonqualified deferred compensation" subject to Section 8(c) (whether they would have otherwise been payable in a single sum 409A of the Code, except to the extent specifically permitted or in installments in required by Section 409A of the absence of such delay) shall Code. (g) If the Executive is entitled to be paid or reimbursed to for any expenses under this Agreement, and such payments or reimbursements are includible in the Executive's federal gross taxable income, the amount of such expenses reimbursable in any one calendar year shall not affect the amount reimbursable in any other calendar year, and the reimbursement of an eligible expense must be made no later than December 31 of the year after the year in which the expense was incurred. No right of the Executive in a lump sum, and to reimbursement of expenses under Section 4 or any remaining payments and benefits due under other Section of this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. (d) With regard to any provision herein that provides for reimbursement of expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in- kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the -10- arrangement is in effect. Except as otherwise allowed under Code Section 409A, all reimbursements shall be reimbursed in accordance with the Company's reimbursement policies but in no event later than the calendar year following the calendar year in which the related expense is incurred. (e) If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment shall be treated as a separate payment. (f) When, if ever, benefit. (h) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be made within ten thirty (30) days following the date of termination"), the actual date of payment within the specified period shall be within the sole discretion of the Company. (g) (i) Notwithstanding any of the provisions other provision of this Agreement, the Company shall not be liable Agreement to the Executive if contrary, in no event shall any payment or benefit which is to be provided pursuant to under this Agreement and which is considered that constitutes "nonqualified deferred compensation compensation" subject to Section 409A of the Code be subject to offset, counterclaim or recoupment by any other amount payable to the Executive unless otherwise fails to comply with, or be exempt from, permitted by Section 409A of the requirements of Code Section 409A. Code.
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RITTER PHARMACEUTICALS INC contract
Code Section 409a Compliance. (a) The intent This Agreement is intended to comply with the provisions of Section 409A of the parties is that payments and benefits under this Agreement comply with Code Section 409A or comply with an exemption from Code, and, to the application of Code Section 409A and, accordingly, all provisions of extent practicable, this Agreement shall be construed interpreted and administered in a manner consistent so that any amount or benefit payable hereunder shall be paid or provided in a manner that... is either exempt from or compliant with the requirements for avoiding taxes Section 409A of the Code and applicable Internal Revenue Service guidance and Treasury Regulations issued thereunder. Terms used in this Agreement shall have the meanings given such terms under Section 409A of the Code if, and to the extent required, in order to comply with Section 409A of the Code. (b) The payment schedules provided hereunder are intended to be exempt from or penalties to comply with the requirements of Section 409A of the Code and shall be interpreted consistently therewith. (c) Any payments under Code Section 409A. (b) Neither 5 shall be made or shall commence only after the Executive nor has a "separation from service" with the Company, as defined under Section 409A of the Code and the guidance issued thereunder. (d) Notwithstanding anything to the contrary in this Agreement, to the extent required to avoid additional taxes and interest charged under Section 409A of the Code, if any of the Company's stock is publicly traded and the Executive is deemed to be a "specified employee" as determined by the Company shall take for purposes of Section 409A(a)(2)(B) of the Code, the Executive agrees that any action non-qualified deferred compensation payments due to accelerate or delay him under this Agreement in connection with a termination of employment that would otherwise have been payable at any time during the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A (including any transition or grandfather rules thereunder). (c) A six (6)-month period immediately following such termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following paid prior to, and shall instead be payable in a termination of employment unless such termination is also a "separation from service" (within the meaning of Code Section 409A) and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, references to a "termination" or "termination of employment" or like references shall mean separation from service. If the Executive is deemed lump sum on the date of separation from service with the Company to be a "specified employee", within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Company from time to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six- month period measured from the date of the Executive's separation from service or (ii) the date of the Executive's death. In the case of benefits, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six month delay period and then be reimbursed by the Company thereafter when delayed payments are made pursuant to the next sentence. On the first day of the seventh (7th) month following the date of the Executive's separation from service or, (or, if earlier, on the date Executive dies during such period, within 30 days after the Executive's death). - 14 - (e) Each payment of termination benefits under Section 5 of this Agreement, including, without limitation, each installment payment, shall be considered a separate payment, as described in Treasury Regulations Section 1.409A-2(b)(2), for purposes of Section 409A of the Executive's death, all payments delayed pursuant Code. (f) Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any payment under this Agreement that constitutes "nonqualified deferred compensation" subject to Section 8(c) (whether they would have otherwise been payable in a single sum 409A of the Code, except to the extent specifically permitted or in installments in required by Section 409A of the absence of such delay) shall Code. (g) If the Executive is entitled to be paid or reimbursed to for any expenses under this Agreement, and such payments or reimbursements are includible in the Executive's federal gross taxable income, the amount of such expenses reimbursable in any one calendar year shall not affect the amount reimbursable in any other calendar year, and the reimbursement of an eligible expense must be made no later than December 31 of the year after the year in which the expense was incurred. No right of the Executive in a lump sum, and to reimbursement of expenses under Section 4 or any remaining payments and benefits due under other Section of this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. (d) With regard to any provision herein that provides for reimbursement of expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in- kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the -10- arrangement is in effect. Except as otherwise allowed under Code Section 409A, all reimbursements shall be reimbursed in accordance with the Company's reimbursement policies but in no event later than the calendar year following the calendar year in which the related expense is incurred. (e) If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment shall be treated as a separate payment. (f) When, if ever, benefit. (h) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be made within ten thirty (30) days following the date of termination"), the actual date of payment within the specified period shall be within the sole discretion of the Company. (g) (i) Notwithstanding any of the provisions other provision of this Agreement, the Company shall not be liable Agreement to the Executive if contrary, in no event shall any payment or benefit which is to be provided pursuant to under this Agreement and which is considered that constitutes "nonqualified deferred compensation compensation" subject to Section 409A of the Code be subject to offset, counterclaim or recoupment by any other amount payable to the Executive unless otherwise fails to comply with, or be exempt from, permitted by Section 409A of the requirements of Code Section 409A. Code.
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