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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 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 her 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). 9 (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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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). (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. 9 (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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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 her 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-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 before, 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 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. 9 (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 5 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 of the parties is that payments and benefits under this Agreement comply with with, or be exempt from, Internal Revenue Code ("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 consistent with the requirements for avoiding taxes or penalties under Cod...e Section 409A. interpreted and administered accordingly. (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) 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." (c) 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 Employee'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. (d) For purposes of Code Section 409A, each Employee'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 (e) If Employee is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of the provisions Code and would receive any payment sooner than 6 months after Employee's "separation from service" that, absent the application of this Agreement, the Company shall not Section 13(e), would be liable subject to the Executive if any payment or benefit which is to be provided additional tax imposed pursuant to this Agreement and which is considered deferred compensation subject to Section 409A otherwise fails to comply with, of the Code 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 Employee's "separation from service," or be exempt from, the requirements of Code Section 409A. (ii) Employee's death.
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Code Section 409a Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with with, or be exempt from Code Section 409A or comply with an exemption from the application of Code Section 409A 409A, and, accordingly, all provisions of this Agreement shall be construed interpreted and applied so as to be in a manner consistent with compliance therewith. The Company and the requirements for avoiding taxes Employee agree to work together in good faith to consider amendments to this Agre...ement and to take such reasonable actions which are necessary, appropriate or penalties desirable to avoid imposition of any additional tax or income recognition prior to actual payment to the Employee 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) 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 "non-qualified 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" employment", or like references terms shall mean separation "separation from service. service". If the Executive Employee is deemed on the date of separation from service with the Company termination 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, 409A(a)(2)(B), then with regard to any payment or benefit that is required to be delayed in compliance with considered non-qualified deferred compensation under Code Section 409A(a)(2)(B), 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided prior to at the date which is the earlier of (i) (A) the expiration of the six- six (6) month period measured from the date of such "separation from service" of the Executive's separation from service or (ii) Employee, and (B) the date of the Executive's death. In Employee's death (the "Delay Period"). Upon 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 expiration 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, Delay Period, all payments and benefits delayed pursuant to this Section 8(c) 26(b) (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 Employee in a lump sum, 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) 10 (c) 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, 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 regard to expenses reimbursed under any arrangement covered by Internal Revenue 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 Employee'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 the Employee'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, a and distinct payments. In no event may the Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement specifies that is considered nonqualified deferred compensation. In no event shall the timing of Employee's execution of the General Release, directly or indirectly, result in the Employee designating the calendar year of payment, and if a payment period with reference that is subject to a number execution of days (e.g., "payment the General Release could be made in more than one taxable year, payment shall be made within ten days following in 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. later taxable year.
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Code Section 409a Compliance. (a) The intent of the 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 the application United States 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 requirem...ents for avoiding taxes or penalties under Code Section 409A. interpreted and administered accordingly. (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) 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." (c) 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 Executive'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. (d) For purposes of Code Section 409A, each Executive'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 (e) If Executive is a specified employee within the meaning of Section409A(a)(2)(B)(i) of the provisions Code and would receive any payment sooner than six (6) months after Executive's "separation from service" that, absent the application of this Agreement, the Company shall not Section 15(e), would be liable subject to the Executive if any payment or benefit which is to be provided additional tax imposed pursuant to this Agreement and which is considered deferred compensation subject to Code Section 409A otherwise fails to comply with, 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) six (6) months after Executive's "separation from service," or be exempt from, the requirements of Code Section 409A. (ii) Executive's death.
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NOVATION COMPANIES, INC. contract
Code Section 409a Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with with, or be exempt from, 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 consistent with the requirements for avoiding taxes or penalties under Code Section 409A. (b) Neithe...r the Executive nor the Company shall take any action interpreted 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) therewith. (b) 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." (c) 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 Executive'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. (d) For purposes of Code Section 409A, each Executive'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 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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CICERO INC contract
Code Section 409a Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with with, or be exempt from, 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 consistent with the requirements for avoiding taxes or penalties under Code Section 409A. interprete...d and administered accordingly. (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) 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." (c) 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 Executive'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. (d) For purposes of Code Section 409A, each Executive'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 (e) If Executive is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of the provisions Code and would receive any payment sooner than 6 months after Executive's "separation from service" that, absent the application of this Agreement, the Company shall not Section 11(e), would be liable subject to the Executive if any payment or benefit which is to be provided additional tax imposed pursuant to this Agreement and which is considered deferred compensation subject to Section 409A otherwise fails to comply with, of the Code 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 Executive's "separation from service," or be exempt from, the requirements of Code Section 409A. (ii) Executive's death.
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Code Section 409a Compliance. (a) The intent It is intended that the provisions of the parties is that payments and benefits under this Agreement comply with Code Section 409A are either exempt from or comply with an exemption from the application terms and conditions of Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively, "Code Section 409A"), and to the extent that the requirements of Code Section 409A and, accordingly, are applicable thereto, all provisions of this Agreement shal...l be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. (b) Neither Notwithstanding the Executive nor the foregoing, 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) 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 no liability with regard to any payment or benefit that is required failure 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) 409A. 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 anything herein to the Executive if contrary or otherwise, except to the extent any payment expense, reimbursement or in-kind 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, does not constitute a "deferral of compensation" within the requirements meaning of Code Section 409A. 409A and the regulations and other guidance thereunder: (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year; (ii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred; and (iii) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of 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, references to a "termination," "termination of employment" or like terms shall mean Separation from Service. Notwithstanding anything to the contrary in this Agreement, if the Company determines (i) that on the date the Executive's employment with the Company terminates or at such other time that the Company determines to be relevant, the Executive is a "specified Executive" (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of the Company and (ii) that any payments to be provided to the Executive pursuant to this Agreement are or may become subject to the additional tax Code Section 409A or any other taxes or penalties imposed under Code Section 409A if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date that is six (6) months after the date of the Executive's Separation from Service, or, if earlier, the date of the Executive's death. Any payments delayed pursuant to this Section shall be made in a lump sum on the first day of the seventh (7th) month following the Executive's Separation from Service, or, if earlier, the date of the Executive's death.
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SOLITRON DEVICES INC contract
Code Section 409a Compliance. (a) The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively "Code Section 409A") and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the Executive notifies the Company (with specificity as to the reason therefor) that the Executive believes that any provision of this Agree...ment (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A 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 the Executive, reform such provision to try to comply with Code Section 409A or 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 an exemption from the application of Code Section 409A and, accordingly, all 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company of the applicable provision without violating the 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 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 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. service." If the Executive is deemed on the date of separation from service with the Company termination 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, 409A(a)(2)(B), then with regard to any payment or benefit that is required to be delayed in compliance with considered non-qualified deferred compensation under Code Section 409A(a)(2)(B), 409A (and not otherwise exempt under Code Section 409A) payable on account of a "separation from service," such payment or benefit shall not be made or provided prior to at the date which is the earlier of (i) the expiration of the six- month six (6)-month period measured from the date of such "separation from service" of the Executive's separation from service or Executive, and (ii) the date of the Executive's death. In death (the "Delay Period"). Upon 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 expiration 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, Delay Period, all payments and benefits delayed pursuant to this Section 8(c) 25 (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, 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. (d) (c) 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 Internal Revenue 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 Executive'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. 10 2947062.v11 (d) For purposes of Code Section 409A, each 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 payment. (f) When, if ever, a and distinct payments. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement specifies that is considered nonqualified deferred compensation. In no event shall the timing of Executive's execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment period with reference that is subject to a number execution of days (e.g., "payment the Release could be made in more than one taxable year, payment shall be made within ten days following in 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. later taxable year.
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Sarepta Therapeutics, Inc. contract
