Section 409a of the Code Clause Example with 166 Variations from Business Contracts
This page contains Section 409a of the Code 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.
Section 409a of the Code. (a) The payments and benefits provided under this Agreement are intended to comply with or be exempt from Section 409A of the Code ("Section 409A") and shall be interpreted or construed consistent with that intent. The Company shall not accelerate any payment or the provision of any benefits under this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be subject to tax under Section 409A. If, in the good faith judgment of ...the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A of the Code. This Section 10 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) Anything in this Agreement to the contrary notwithstanding, each payment of compensation made to the Executive shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within the sole discretion of the Company. In no event may the Company be permitted to control the year in which payment occurs. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (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; and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, to the extent that the right to any payment (including the provision of benefits) hereunder provides for the "deferral of compensation" within the meaning of Section 409A(d)(1), if the Executive is a "Specified Executive" within the meaning of Section 409A(a)(2)(B)(i) on the date of the Executive's Separation from Service, then no such payment shall be made or commence during the period beginning on the date of the Executive's Separation from Service and ending on the date that is six months following the Executive's Separation from Service or, if earlier, on the date of the Executive's death. The amount of any payment that would otherwise be paid to the Executive during this period shall instead be paid to the Executive on the fifteenth (15th) day of the first calendar month following the end of the six-month period.View More
Variations of a "Section 409a of the Code" Clause from Business Contracts
Section 409a of the Code. (a) The payments §§ 1818(e)(3) and benefits provided under this Agreement are intended to comply with or be exempt from Section 409A of the Code ("Section 409A") and shall be interpreted or construed consistent with that intent. The Company shall not accelerate any payment or the provision of any benefits under this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be subject to tax under Section 409A. If, in the good fait...h judgment of the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A of the Code. This Section 10 does not create an obligation on the part (g)(1)), all obligations of the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) Anything in this Agreement to the contrary notwithstanding, each payment of compensation made to the Executive shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within the sole discretion of the Company. In no event may the Company be permitted to control the year in which payment occurs. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (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; and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided Bank under this Agreement shall be paid suspended as of the date of service unless stayed by appropriate proceedings. If the charges in the notice are dismissed, the Company and the Bank may in their discretion (but subject in all events to the requirements of Code Section 409A), (i) pay Executive on or before December 31st all of the calendar year immediately compensation withheld while the Company's -13- and the Bank's obligations under this Agreement were suspended and (ii) reinstate (in whole) any of the Company's and the Bank's obligations which were suspended, and in exercising such discretion, the Company and the Bank shall consider the facts and make a decision promptly following such dismissal of charges and act in good faith in deciding whether to pay any withheld compensation to Executive, and to reinstate any suspended obligations of the calendar year Company and the Bank. (b) If Executive is removed and/or permanently prohibited from participating in which the Executive remits conduct of the related taxes. Bank's affairs by an order issued under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, as amended (12 U.S.C. §§ 1818(e)(4) or (g)(1)), all obligations of the Company and the Bank under this Agreement shall terminate as of the effective date of the order, but vested rights of the parties shall not be affected. (c) Notwithstanding If the Bank is in default, as defined in Section 3(x)(1) of the Federal Deposit Insurance Act, as amended (12 U.S.C. §§ 1813(x)(1)), all obligations of the Company and the Bank under this Agreement shall terminate as of the date of default, but this provision shall not affect any other provision vested rights of the parties. (d) All obligations under this Agreement, Agreement shall be terminated, except to the extent determined that continuation of this Agreement is necessary for the right continued operation of the Bank, (i) by the Office of the Comptroller of the Currency or other applicable banking regulator (the "Regulator"), at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act, as amended; or (ii) by the Regulator, at the time the Regulator approves a supervisory merger to resolve problems related to operation of the Bank or when the Bank is determined by the Regulator to be in an unsafe or unsound condition. Any rights of the parties that have already vested, however, shall not be affected by such action. (e) If, after the Effective Date: (i) any regulation applicable to the Company or the Bank is amended or modified, or if any new regulation applicable to the Company or the Bank becomes effective, and such amended, modified, or new regulation requires the inclusion in this Agreement of a provision not presently included in this Agreement, then the foregoing provisions of this Section shall be deemed amended to the extent necessary to give effect in this Agreement to any payment (including such amended, modified or new regulation; and (ii) any regulation applicable to the provision Company or the Bank is amended or modified, or if any new regulation applicable to the Company or the Bank becomes effective, and such amended, modified, or new regulation permits the exclusion of benefits) hereunder provides for the "deferral of compensation" within the meaning of Section 409A(d)(1), if the Executive is a "Specified Executive" within the meaning of Section 409A(a)(2)(B)(i) limitation in this Agreement on the date payment to Executive of an amount or benefit provided for presently in this Agreement, then the Executive's Separation from Service, then no such payment foregoing provisions of this Section shall be made or commence during the period beginning on the date of the Executive's Separation from Service and ending on the date that is six months following the Executive's Separation from Service or, if earlier, on the date of the Executive's death. The amount of any payment that would otherwise be paid deemed amended to the Executive during extent permissible to exclude from this period shall instead Agreement any such limitation previously required to be paid included in this Agreement by a regulation prior to the Executive on the fifteenth (15th) day of the first calendar month following the end of the six-month period. its amendment, modification or repeal. View More
Section 409a of the Code. (a) The a. To the extent (i) any payments to which Employee becomes entitled under this Agreement, or any agreement or plan referenced herein, in connection with Employee's termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code; (ii) Employee is deemed at the time of his separation from service to be a "specified employee" under Section 409A of the Code; and benefits provided (iii) at the time of Employee's separation from service the Comp...any is publicly traded (as defined in Section 409A of Code), then such payments (other than any payments permitted by Section 409A of the Code to be paid within six (6) months of Employee's separation from service) shall not be made until the earlier of (x) the first day of the seventh month following Employee's separation from service or (y) the date of Employee's death following such separation from service. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this Section 12 shall be paid to Employee or Employee's beneficiary in one lump sum. Each payment made under this Agreement are shall be designated as a "separate payment" within the meaning of Section 409A of the Code. b. It is intended to that this Agreement comply with or be exempt from the provisions of Section 409A of the Code ("Section 409A") and the Treasury Regulations and guidance of general applicability issued thereunder so as to not subject Employee to the payment of additional interest and taxes under Section 409A of the Code, and in furtherance of this intent, this Agreement shall be interpreted or construed interpreted, operated and administered in a manner consistent with these intentions. Notwithstanding the above, in no event whatsoever shall the Company be liable for any additional tax, interest or penalty that intent. The Company shall not accelerate any payment or the provision of any benefits under this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, may be subject to tax under imposed upon Employee by Section 409A. If, in the good faith judgment 409A of the Company, any provision of this Agreement could cause the Executive Code or damages for failing to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of comply with Section 409A of the Code. This Section 10 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) Anything in this Agreement to the contrary notwithstanding, each payment of compensation made to the Executive shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within the sole discretion of the Company. In no event may the Company be permitted to control the year in which payment occurs. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (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; and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, to the extent that the right to any payment (including the provision of benefits) hereunder provides for the "deferral of compensation" within the meaning of Section 409A(d)(1), if the Executive is a "Specified Executive" within the meaning of Section 409A(a)(2)(B)(i) on the date of the Executive's Separation from Service, then no such payment shall be made or commence during the period beginning on the date of the Executive's Separation from Service and ending on the date that is six months following the Executive's Separation from Service or, if earlier, on the date of the Executive's death. The amount of any payment that would otherwise be paid to the Executive during this period shall instead be paid to the Executive on the fifteenth (15th) day of the first calendar month following the end of the six-month period.View More
Section 409a of the Code. (a) The It is intended that any payments and or benefits provided under pursuant to this Agreement are intended satisfy, to comply with or be exempt the greatest extent possible, the exemptions from the application of Section 409A of the Code ("Section 409A") provided under Treasury Regulation Sections 1.409A-1(b)(4) and shall be interpreted or construed consistent with 1.409A- 2 1(b)(5). Notwithstanding the foregoing, if the Company determines that intent. The Company shall not accelerate any p...ayment or the provision of any benefits under benefit described in this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be subject to tax under Section 409A. If, in the good faith judgment of the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences constitutes "non-qualified deferred compensation" under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A of the Code. This Section 10 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) Anything in this Agreement to the contrary notwithstanding, each payment of compensation made to the Executive shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within the sole discretion of the Company. In no event may the Company be permitted to control the year in which payment occurs. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (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; and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, to the extent that such payment or benefit is payable upon Employee's termination of employment, then such payments or benefits shall be payable only upon Employee's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the right to any payment (including presumptions set forth in Treasury Regulation Section 1.409A-1(h). In addition, if at the provision time of benefits) hereunder provides for the "deferral of compensation" within the meaning of Section 409A(d)(1), if the Executive Employee's separation from service Employee is a "Specified Executive" "specified employee" within the meaning of Section 409A(a)(2)(B)(i) on the date of the Executive's Separation from Service, then no such payment shall be made or commence during Code, then, solely to the period beginning on extent necessary to avoid the date incurrence of the Executive's Separation adverse personal tax consequences under Section 409A any payment or benefit that Employee becomes entitled to under this Agreement on account of Employee's separation from Service service shall not be payable and ending on such benefit shall not be provided until the date that is the earlier of (i) six (6) months following and one (1) day after Employee's separation from service and (ii) Employee's death. If any such delayed payment is otherwise payable on an installment basis, the Executive's Separation from Service or, if earlier, on first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the date six (6)-month period but for the application of this provision, and the balance of the Executive's death. The amount of installments shall be payable in accordance with their original schedule. In addition, interest at the Prime Rate as reported in the Wall Street Journal shall be added to any payment that would otherwise be paid is delayed pursuant to this Paragraph 3, for the Executive time period during this period shall instead be paid to the Executive on the fifteenth (15th) day of the first calendar month following the end of the six-month period. which such payment was delayed. View More
Section 409a of the Code. (a) The payments and benefits provided under this Agreement are intended to comply with or be exempt from Section 409A of the Code ("Section 409A") and shall be interpreted or construed consistent with that intent. The Company shall not accelerate any payment or the provision of any benefits under this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be subject to tax under Section 409A. If, in the good faith judgment of ...the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A of the Code. This Section 10 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) 12.1 Anything in this Agreement to the contrary notwithstanding, each payment of compensation made to if at the Executive shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within the sole discretion time of the Company. In no event may the Company be permitted to control the year in which payment occurs. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (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; and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, to the extent that the right to any payment (including the provision of benefits) hereunder provides for the "deferral of compensation" Employee's Severance from service within the meaning of Section 409A(d)(1), if 409A of the Executive United States Internal Revenue Code of 1986, as amended (the "Code"), the Employer determines that the Employee is a "Specified Executive" "specified employee" within the meaning of Section 409A(a)(2)(B)(i) on of the Code, then the payment of any deferred compensation hereunder shall not commence until the date that is the earlier of: (A) six (6) months and one (1) calendar day after the Employee's Severance from service; and (B) his death. 12.2 Any installment payments of severance or other deferred compensation under this Agreement shall be deemed a series of separate payments for purposes of section 409A of the Executive's Separation from Service, Code. 12.3 To the extent necessary to comply with Section 409A of the Code, if the period for considering and executing the Release under this Agreement spans two (2) calendar years, then no such the severance or payment shall will not be made or commence during until the period beginning on later calendar year. 12.4 Notwithstanding anything herein to the date contrary, no event shall constitute a "termination of employment" in this Agreement, unless such event is also a "Severance from service," as that term is defined for purposes of Section 409A of the Executive's Separation Code and Treasury Regulations §1.409A-3(a)(1) and 1.409A-1(h), and any references hereunder to "termination of employment" shall have the same meaning as "Severance from Service and ending on the date service," as so defined. 12.5 The parties intend that is six months following the Executive's Separation from Service or, if earlier, on the date this Agreement will be administered in accordance with Section 409A of the Executive's death. Code such that no tax is triggered thereunder. To the extent that any provision of this Agreement is ambiguous as to such compliance with Section 409A of the Code, the provision shall be read in such a manner that all payments hereunder so comply with Section 409A of the Code. The amount parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of any payment that would otherwise be paid the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional tax cost to either party. 7 12.6 The Employer makes no representation or warranty as to the Executive during compliance of this period Agreement with Code Section 409A, and, other than its tax withholding obligation, the Employer shall instead be paid have no liability to the Executive on the fifteenth (15th) day Employee or any other person if any provisions of this Agreement is determined to constitute deferred compensation taxable under Section 409A of the first calendar month following Code. However, the end parties agree to reasonably cooperate and work together to adopt amendments to this Agreement to the extent necessary to comply with Section 409A of the six-month period. Code with the intent to avoid liability under Code Section 409A. View More
Section 409a of the Code. (a) The payments and benefits provided under this Agreement are intended to comply with or be exempt from Section 409A of the Code ("Section 409A") and shall be interpreted or construed consistent with that intent. The Company shall not accelerate any payment or the provision of any benefits under this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be subject to tax under Section 409A. If, in the good faith judgment of ...the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A of the Code. This Section 10 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) 13.1 Anything in this Agreement to the contrary notwithstanding, each payment of compensation made to if at the Executive shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within the sole discretion time of the Company. In no event may the Company be permitted to control the year in which payment occurs. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (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; and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, to the extent that the right to any payment (including the provision of benefits) hereunder provides for the "deferral of compensation" Employee's separation from service within the meaning of Section 409A(d)(1), if 409A of the Executive United States Internal Revenue Code of 1986, as amended (the "Code"), the Employer determines that the Employee is a "Specified Executive" "specified employee" within the meaning of Section 409A(a)(2)(B)(i) on of the Code, then the payment of any deferred compensation hereunder shall not commence until the date that is the earlier of: (A) six (6) months and one (1) calendar day after the Employee's separation from service; and (B) his death. 13.2 Any installment payments of severance or other deferred compensation under this Agreement shall be deemed a series of separate payments for purposes of section 409A of the Executive's Separation from Service, Code. 13.3 To the extent necessary to comply with Section 409A of the Code, if the period for considering and executing the Release under this Agreement spans two (2) calendar years, then no such the severance or payment shall will not be made or commence during until the period beginning on later calendar year. 13.4 Notwithstanding anything herein to the date contrary, no event shall constitute a "termination of employment" in this Agreement, unless such event is also a "separation from service," as that term is defined for purposes of Section 409A of the Executive's Separation Code and Treasury Regulations §1.409A-3(a)(1) and 1.409A-1(h), and any references hereunder to "termination of employment" shall have the same meaning as "separation from Service and ending on the date service," as so defined. 8 13.5 The parties intend that is six months following the Executive's Separation from Service or, if earlier, on the date this Agreement will be administered in accordance with Section 409A of the Executive's death. Code such that no tax is triggered thereunder. To the extent that any provision of this Agreement is ambiguous as to such compliance with Section 409A of the Code, the provision shall be read in such a manner that all payments hereunder so comply with Section 409A of the Code. The amount parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of any payment that would otherwise be paid the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional tax cost to either party. 13.6 The Employer makes no representation or warranty as to the Executive during compliance of this period Agreement with Code Section 409A, and, other than its tax withholding obligation, the Employer shall instead be paid have no liability to the Executive on the fifteenth (15th) day Employee or any other person if any provisions of this Agreement is determined to constitute deferred compensation taxable under Section 409A of the first calendar month following Code. However, the end parties agree to reasonably cooperate and work together to adopt amendments to this Agreement to the extent necessary to comply with Section 409A of the six-month period. Code with the intent to avoid liability under Code Section 409A. View More
Section 409a of the Code. (a) The payments and benefits provided under this Agreement are intended to comply with or be exempt from Section 409A of the Code ("Section 409A") and shall be interpreted or construed consistent with that intent. The Company shall not accelerate any payment or the provision of any benefits under this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be subject to tax under Section 409A. If, in the good faith judgment of ...the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A of the Code. This Section 10 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) 13.1 Anything in this Agreement to the contrary notwithstanding, each payment of compensation made to if at the Executive shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within the sole discretion time of the Company. In no event may the Company be permitted to control the year in which payment occurs. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (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; and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, to the extent that the right to any payment (including the provision of benefits) hereunder provides for the "deferral of compensation" Employee's separation from service within the meaning of Section 409A(d)(1), if 409A of the Executive United States Internal Revenue Code of 1986, as amended (the "Code"), the Employer determines that the Employee is a "Specified Executive" "specified employee" within the meaning of Section 409A(a)(2)(B)(i) on of the Code, then the payment of any deferred compensation hereunder shall not commence until the date that is the earlier of: (A) six (6) months and one (1) calendar day after the Employee's separation from service; and (B) his death. 13.2 Any installment payments of severance or other deferred compensation under this Agreement shall be deemed a series of separate payments for purposes of section 409A of the Executive's Separation from Service, Code. 8 13.3 To the extent necessary to comply with Section 409A of the Code, if the period for considering and executing the Release under this Agreement spans two (2) calendar years, then no such the severance or payment shall will not be made or commence during until the period beginning on later calendar year. 13.4 Notwithstanding anything herein to the date contrary, no event shall constitute a "termination of employment" in this Agreement, unless such event is also a "separation from service," as that term is defined for purposes of Section 409A of the Executive's Separation Code and Treasury Regulations §1.409A-3(a)(1) and 1.409A-1(h), and any references hereunder to "termination of employment" shall have the same meaning as "separation from Service and ending on the date service," as so defined. 13.5 The parties intend that is six months following the Executive's Separation from Service or, if earlier, on the date this Agreement will be administered in accordance with Section 409A of the Executive's death. Code such that no tax is triggered thereunder. To the extent that any provision of this Agreement is ambiguous as to such compliance with Section 409A of the Code, the provision shall be read in such a manner that all payments hereunder so comply with Section 409A of the Code. The amount parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of any payment that would otherwise be paid the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional tax cost to either party. 13.6 The Employer makes no representation or warranty as to the Executive during compliance of this period Agreement with Code Section 409A, and, other than its tax withholding obligation, the Employer shall instead be paid have no liability to the Executive on the fifteenth (15th) day Employee or any other person if any provisions of this Agreement is determined to constitute deferred compensation taxable under Section 409A of the first calendar month following Code. However, the end parties agree to reasonably cooperate and work together to adopt amendments to this Agreement to the extent necessary to comply with Section 409A of the six-month period. Code with the intent to avoid liability under Code Section 409A. View More
Section 409a of the Code. (a) The payments and benefits provided under this Agreement are intended to comply with or be exempt from Section 409A of the Code ("Section 409A") and shall be interpreted or construed consistent with that intent. The Company shall not accelerate any payment or the provision of any benefits under this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be subject to tax under Section 409A. If, in the good faith judgment of ...the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A of the Code. This Section 10 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) Anything in this Agreement to the contrary notwithstanding, each payment of compensation made to if at the Executive shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within the sole discretion time of the Company. In no event may the Company be permitted to control the year in which payment occurs. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (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; and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, to the extent that the right to any payment (including the provision of benefits) hereunder provides for the "deferral of compensation" Employee's separation from service within the meaning of Section 409A(d)(1), if 409A of the Executive is United States Internal Revenue Code of 1986, as amended (the "Code"), the Employer determines that you are a "Specified Executive" "specified employee" within the meaning of Section 409A(a)(2)(B)(i) on of the Code, then the payment of any deferred compensation hereunder shall not commence until the date that is the earlier of: (A) six (6) months and one (1) calendar day after the Employee's separation from service; and (B) his death. 7 Any installment payments of severance or other deferred compensation under this Agreement shall be deemed a series of separate payments for purposes of section 409A of the Executive's Separation from Service, Code. To the extent necessary to comply with Section 409A of the Code, if the time period for considering and executing the Release under this Letter Agreement spans two (2) calendar years, then no such the severance or payment shall will not be made or commence during until the period beginning on later calendar year. Notwithstanding anything herein to the date contrary, no event shall constitute a "termination of employment" in this Agreement, unless such event is also a "separation from service," as that term is defined for purposes of Section 409A of the Executive's Separation Code and Treasury Regulations §1.409A-3(a)(1) and 1.409A-1(h), and any references hereunder to "termination of employment" shall have the same meaning as "separation from Service and ending on the date service," as so defined. The parties intend that is six months following the Executive's Separation from Service or, if earlier, on the date this Agreement will be administered in accordance with Section 409A of the Executive's death. Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The amount parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of any payment that would otherwise be paid the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. The Employer makes no representation or warranty as to the Executive during compliance of this period Agreement with Code Section 409A, and, other than its tax withholding obligation, the Employer shall instead be paid have no liability to the Executive on the fifteenth (15th) day Employee or any other person if any provisions of this Agreement is determined to constitute deferred compensation taxable under Section 409A of the first calendar month following Code. However, the end parties agree to reasonably cooperate and work together to adopt amendments to this Agreement to the extent necessary to comply with Section 409A of the six-month period. Code with the intent to avoid liability under Code Section 409A. View More
Section 409a of the Code. (a) The This Agreement and Restricted Stock Units granted hereunder are intended to comply with the requirements of Section 409A of the Code ("Section 409A"), including the exceptions thereto, and shall be construed and administered in accordance with such intent. Notwithstanding any other provision of this Agreement or the Plan, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under thi...s Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement are intended to comply with or be exempt from Section 409A of and in no event shall the Code ("Section 409A") and shall Company, its directors, officers or employees be interpreted liable for all or construed consistent with that intent. The Company shall not accelerate any payment or the provision portion of any benefits under this Agreement taxes, penalties, interest or make or provide any such payment or benefits if such payment or provision other expenses that may be incurred by the Participant on account of such benefits would, as a result, be subject to tax under non-compliance with Section 409A. If, in the good faith judgment of the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A of the Code. This Section 10 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) Anything in this Agreement to the contrary notwithstanding, each payment of compensation made to the Executive shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within the sole discretion of the Company. In no event may the Company be permitted to control the year in which payment occurs. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (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; and (iii) such payments shall be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, if at the time of the Participant's termination of employment, he or she is a "specified employee", determined in accordance with Section 409A, any payments or distribution of Shares provided under this Agreement that constitute "nonqualified deferred compensation" subject to Section 409A that are provided to the extent that Participant on account of his separation from service shall not be paid until the right first payroll date to any payment (including occur following the provision of benefits) hereunder provides for the "deferral of compensation" within the meaning of Section 409A(d)(1), if the Executive is a "Specified Executive" within the meaning of Section 409A(a)(2)(B)(i) on the date six-month anniversary of the Executive's Separation from Service, then no such payment shall be made or commence during the period beginning on the Participant's termination date of the Executive's Separation from Service and ending on the date that is six months following the Executive's Separation from Service or, if earlier, on the date of the Executive's death. ("Specified Employee Payment Date"). The aggregate amount of any payment payments or distributions that would otherwise have been made during such six-month period shall be paid to in a lump sum on the Executive during this period Specified Employee Payment Date without interest and thereafter, any remaining payments shall instead be paid to the Executive on the fifteenth (15th) day of the first calendar month following the end of the six-month period. without delay in accordance with their original schedule. View More
Section 409a of the Code. (a) The General. Notwithstanding the other provisions hereof, this Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A"), to the extent applicable, and shall be interpreted to avoid any penalty sanctions under Section 409A. Accordingly, all provisions herein, or incorporated by reference, shall be construed and interpreted 3 to comply with Section 409A and, if necessary, any such provision shall be deemed amended t...o comply with Section 409A and regulations thereunder. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. All payments and to be made upon a termination of employment under this Agreement that are deferred compensation may only be made upon a "separation from service" under Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Employee, directly or indirectly, designate the calendar year of payment. (b) Payment Delay. To the maximum extent permitted under Section 409A, the severance benefits provided payable under this Agreement are intended to comply with or be exempt from Section 409A the "short-term deferral exception" under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the "separation pay exception" under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Employee during the six (6) month period following Employee's last day of employment with the Code ("Section 409A") Company that does not qualify within this exception and shall be interpreted or construed consistent with that intent. The Company shall not accelerate any payment or the provision of any benefits under this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be constitutes deferred compensation subject to tax under Section 409A. If, in the good faith judgment of the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A shall hereinafter be referred to as the "Excess Amount." If at the time of Employee's separation from service, the Code. This Section 10 does not create an obligation on the part of Company's (or any entity required to be aggregated with the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) Anything 409A) stock is publicly-traded on an established securities market or otherwise and Employee is a "specified employee" (as defined in this Agreement to the contrary notwithstanding, each payment of compensation made to the Executive shall be treated as a separate Section 409A and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within determined in the sole discretion of the Company. In no event may Company (or any successor thereto) in accordance with the Company's (or any successor thereto) "specified employee" determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Employee's last day of employment with the Company (or any successor thereto) for six (6) months following Employee's last day of employment with the Company (or any successor thereto). The delayed Excess Amount shall be permitted paid in a lump sum to control Employee within thirty (30) days following the year date that is six (6) months following Employee's last day of employment with the Company (or any successor thereto) and any amounts payable after such six (6) month period shall be paid in which accordance with its original schedule. If Employee dies during such six (6) month period and prior to the payment occurs. With regard of the portion of the Excess Amount that is required to be delayed on account of Section 409A, such Excess Amount shall be paid to the personal representative of Employee's estate within sixty (60) days after Employee's death. (c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any provision herein that provides reimbursement is for reimbursement expenses incurred during Employee's lifetime (or during a shorter period of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided reimbursement during any taxable a calendar year shall may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, reimbursement in any other taxable year; and calendar year, (iii) such payments shall the reimbursement of an eligible expense will be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, to the extent that is incurred, and (iv) the right to any payment (including the provision of benefits) hereunder provides reimbursement is not subject to liquidation or exchange for the "deferral of compensation" within the meaning of Section 409A(d)(1), if the Executive is a "Specified Executive" within the meaning of Section 409A(a)(2)(B)(i) on the date of the Executive's Separation from Service, then no such payment shall be made or commence during the period beginning on the date of the Executive's Separation from Service and ending on the date that is six months following the Executive's Separation from Service or, if earlier, on the date of the Executive's death. The amount of any payment that would otherwise be paid to the Executive during this period shall instead be paid to the Executive on the fifteenth (15th) day of the first calendar month following the end of the six-month period. another benefit. View More
Section 409a of the Code. (a) The General. Notwithstanding the other provisions hereof, this Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A"), to the extent applicable, and shall be interpreted to avoid any penalty sanctions under Section 409A. Accordingly, all provisions herein, or incorporated by reference, shall be construed and interpreted to comply with Section 409A and, if necessary, any such provision shall be deemed amended to ...comply with Section 409A and regulations thereunder. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. All 3 payments and to be made upon a termination of employment under this Agreement that are deferred compensation may only be made upon a "separation from service" under Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment. In no event may Employee, directly or indirectly, designate the calendar year of payment. (b) Payment Delay. To the maximum extent permitted under Section 409A, the severance benefits provided payable under this Agreement are intended to comply with or be exempt from Section 409A the "short-term deferral exception" under Treas. Reg. §1.409A-1(b)(4), and any remaining amount is intended to comply with the "separation pay exception" under Treas. Reg. §1.409A-1(b)(9)(iii); provided, however, any amount payable to Employee during the six (6) month period following Employee's last day of employment with the Code ("Section 409A") Company that does not qualify within this exception and shall be interpreted or construed consistent with that intent. The Company shall not accelerate any payment or the provision of any benefits under this Agreement or make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be constitutes deferred compensation subject to tax under Section 409A. If, in the good faith judgment of the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without contravening the requirements of Section 409A shall hereinafter be referred to as the "Excess Amount." If at the time of Employee's separation from service, the Code. This Section 10 does not create an obligation on the part of Company's (or any entity required to be aggregated with the Company to modify this Agreement and does not guarantee that the amounts or benefits owed under this Agreement will not be subject to interest and penalties under Section 409A. (b) Anything 409A) stock is publicly-traded on an established securities market or otherwise and Employee is a "specified employee" (as defined in this Agreement to the contrary notwithstanding, each payment of compensation made to the Executive shall be treated as a separate Section 409A and distinct payment from all other such payments for purposes of Section 409A. The actual date of payment pursuant to this Agreement shall be within determined in the sole discretion of the Company. In no event may Company (or any successor thereto) in accordance with the Company's (or any successor thereto) "specified employee" determination policy), then the Company shall postpone the commencement of the payment of the portion of the Excess Amount that is payable within the six (6) month period following Employee's last day of employment with the Company (or any successor thereto) for six (6) months following Employee's last day of employment with the Company (or any successor thereto). The delayed Excess Amount shall be permitted paid in a lump sum to control Employee within thirty (30) days following the year date that is six (6) months following Employee's last day of employment with the Company (or any successor thereto) and any amounts payable after such six (6) month period shall be paid in which accordance with its original schedule. If Employee dies during such six (6) month period and prior to the payment occurs. With regard of the portion of the Excess Amount that is required to be delayed on account of Section 409A, such Excess Amount shall be paid to the personal representative of Employee's estate within sixty (60) days after Employee's death. (c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any provision herein that provides reimbursement is for reimbursement expenses incurred during Employee's lifetime (or during a shorter period of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided reimbursement during any taxable a calendar year shall may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, reimbursement in any other taxable year; and calendar year, (iii) such payments shall the reimbursement of an eligible expense will be made on or before the last day of the Executive's taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31st of the calendar year immediately following the calendar year in which the Executive remits the related taxes. (c) Notwithstanding any other provision of this Agreement, to the extent that is incurred, and (iv) the right to any payment (including the provision of benefits) hereunder provides reimbursement is not subject to liquidation or exchange for the "deferral of compensation" within the meaning of Section 409A(d)(1), if the Executive is a "Specified Executive" within the meaning of Section 409A(a)(2)(B)(i) on the date of the Executive's Separation from Service, then no such payment shall be made or commence during the period beginning on the date of the Executive's Separation from Service and ending on the date that is six months following the Executive's Separation from Service or, if earlier, on the date of the Executive's death. The amount of any payment that would otherwise be paid to the Executive during this period shall instead be paid to the Executive on the fifteenth (15th) day of the first calendar month following the end of the six-month period. another benefit. View More
