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Section 409a Clause Example with 1,590 Variations from Business Contracts
This page contains Section 409a 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. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The 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 the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Found in
Fusion Pharmaceuticals Inc. contract
Variations of a "Section 409a" Clause from Business Contracts
Section 409a. (a) Anything in To the extent required by Section 409A of the Code, all references to "termination of employment" and correlative phrases for purposes of this Agreement shall be construed to require a "separation from service" (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the contrary notwithstanding, if presumptions contained therein). (b) To the extent that (i) any payments or benefits to which Executive becomes entitled under this Agreement, or under an...y other plan, program or agreement maintained by a member of the Company Group, in connection with Executive's termination of employment with the Company constitute "nonqualified deferred compensation" subject to Section 409A of the Code and (b) Executive is deemed at the time of such termination of employment to be a "specified employee" under Section 409A of the Code, then such payments or benefits shall not be made or commence until the earliest of (A) the expiration of the six (6) month and one day period measured from the date of Executive's separation from service within (as defined in Section 15(a) above) from the meaning Company; or (B) the date of Executive's death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive, including (without limitation) the additional twenty-percent (20% tax for which Executive would otherwise be liable under Section 409A(a)(1)(b) of the Code in absence of such deferral. 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 12 absence of this paragraph shall be paid to Executive or Executive's beneficiary in one lump sum. For purposes of this Section 15, the term "specified employee" means an individual determined by a member of the Company Group to be a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with the policies of Company Group. (c) It is intended that each installment of any benefits or payments provided hereunder constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulations Section 1.409A-1(b)(4) (as a "short-term deferral") and Section 1.409A-1(b)(9) (as "separation pay due to involuntary separation"). The parties intend that all the benefits and payments provided under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code. Notwithstanding the immediately preceding sentence, in no event whatsoever shall any member of the Company Group be liable for any additional tax, interest, or penalties that may be imposed on Executive as a result of Section 409A of the Code or any damages for failing to comply with Section 409A of the Code (other than for withholding obligations or other obligations applicable to employers, if any, under Section 409A of the Code). (d) Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to constitute "nonqualified deferred compensation" subject to Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning amount of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by reimbursement, or the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall provision of any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred benefit, in one taxable calendar year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The 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 the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Found in
Alleghany Corporation contract
Section 409a. (a) Anything 25.1 This Agreement is intended to comply with Section 409A of the Code or an exemption thereto, and, to the extent necessary in order to avoid the imposition of a penalty tax on the Executive under Section 409A of the Code, payments may only be made under this -13- Agreement upon an event and in a manner permitted by Section 409A of the Code. Any payments or benefits that are provided upon a Termination shall, to the extent necessary in order to avoid the imposition of a penalty ta...x on the Executive under Section 409A of the Code, not be provided unless such Termination constitutes a "separation from service" within the meaning of Section 409A of the Code. Any payments that qualify for the "short-term deferral" exception or another exception under Section 409A of the Code shall be paid under the applicable exception. Notwithstanding anything in this Agreement to the contrary notwithstanding, contrary, if at the time Executive is considered a "specified employee" (as defined in Section 409A of the Code), any amounts paid or provided under this Agreement shall, to the extent necessary in order to avoid the imposition of a penalty tax on the Executive under Section 409A of the Code, be delayed for six months after the Executive's separation "separation from service service" within the meaning of Section 409A of the Code, and the Company determines that accumulated amounts shall be paid in a lump sum within ten days after the end of the six-month period. If the Executive dies during the six-month postponement period prior to the payment of benefits, the amounts the payment of which is a "specified employee" within the meaning deferred on account of Section 409A(a)(2)(B)(i) 409A of the Code shall be paid to the personal representative of the Executive's estate within 60 days after the date of the Executive's death. 25.2 For purposes of Section 409A of the Code, then the right to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account a series of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement payments under this Agreement shall be treated as a right to a series of separate payments. In no event may the Executive, directly or indirectly, designate the calendar year of a payment. All reimbursements and in-kind benefits provided by under this Agreement shall be made or provided in accordance with the Company or requirements of Section 409A of the Code, including, where applicable, the requirement that (a) any reimbursement is for expenses incurred by the Executive during the period of time periods set forth specified in this Agreement. All reimbursements shall Agreement, (b) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be paid as soon as administratively practicable, but provided, in any other calendar year, (c) the reimbursement of an eligible expense will be made no event shall any reimbursement be paid after later than the last day of the taxable calendar year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred, and (d) the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind in kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The 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 the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a. (a) Anything in Notwithstanding any other provision of this Agreement to the contrary notwithstanding, if contrary, the provision, time and manner of payment or distribution of all compensation and benefits provided by this Agreement that constitute nonqualified deferred compensation subject to and not exempted from the requirements of Section 409A of the Code ("Section 409A Deferred Compensation") shall be subject to, limited by and construed in accordance with the requirements of Section 409A ...of the Code and all regulations and other guidance promulgated by the Secretary of the Treasury pursuant to such Section (such Section, regulations and other guidance being referred to herein as "Section 409A"), including the following: (a) Separation from Service. Payments and benefits constituting Section 409A Deferred Compensation otherwise payable or provided pursuant to Section 2(b) upon the Executive's termination of employment shall be paid or provided only at the time of a termination of the Executive's employment that constitutes a Separation from Service. For the purposes of this Agreement, a "Separation from Service" is a separation from service within the meaning of Treasury Regulation Section 409A 1.409A-1(h). (b) Six-Month Delay Applicable to Specified Employees. If, at the time of a Separation from Service of the Code, the Company determines that Executive, the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, (a "Specified Employee"), then any payments and benefits constituting Section 409A Deferred Compensation to the extent any payment be paid or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed provided pursuant to Section 409A(a) 2(b) upon the Separation from Service of the Code as a result Executive 8 shall be paid or provided commencing on the later of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until (i) the date that is the earlier of (A) six months and one day after the Executive's separation date of such Separation from service, Service or, if earlier, the date of death of the Executive (in either case, the "Delayed Payment Date"), or (B) (ii) the Executive's death. If any date or dates on which such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that Section 409A Deferred Compensation would otherwise have been be paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable or provided in accordance with their original schedule. (b) Section 2(b). All in-kind benefits provided such amounts that would, but for this Section 15(b), become payable prior to the Delayed Payment Date shall be accumulated and expenses eligible for reimbursement under paid on the Delayed Payment Date. (c) Stock-Based Awards. The vesting of any stock-based compensation awards which constitute Section 409A Deferred Compensation and are held by the Executive, if the Executive is a Specified Employee, shall be accelerated in accordance with this Agreement to the extent applicable; provided, however, that the payment in settlement of any such awards shall occur on the Delayed Payment Date. (d) Installments. Executive's right to receive any installment payments payable hereunder shall be provided by treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment for purposes of Section 409A. (e) Reimbursements. To the Company or incurred by extent that any reimbursements payable to Executive pursuant to this Agreement are subject to the Executive during the time periods set forth in this Agreement. All provisions of Section 409A, such reimbursements shall be paid as soon as administratively practicable, but in to Executive no event shall any reimbursement be paid after the last day later than December 31 of the taxable year following the taxable year in which the expense cost was incurred. The incurred; the amount of in-kind benefits provided or reimbursable expenses incurred reimbursed in one taxable year shall not affect the in-kind benefits to be provided or the expenses amount eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such subsequent year; and Executive's right to reimbursement or in-kind benefits is under this Agreement will not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The 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 the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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RE/MAX Holdings, Inc. contract
Section 409a. (a) Anything General. The intent of the Parties is that the payments and benefits under this Agreement comply with or be exempt from Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively, "Section 409A") and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. (b) Separation from Service. Notwithstanding anything in this Agreement to the contrary notwithstanding, if at contrary, any compensatio...n or benefits payable under this Agreement that is considered nonqualified deferred compensation under Section 409A and is designated under this Agreement as payable upon Executive's termination of employment shall be payable only upon Executive's "separation from service" with the time of the Executive's separation from service Company within the meaning of Section 409A (a "Separation from Service") and, except as provided below, any such compensation or benefits described in Section 4 shall not be paid, or, in the case of installments, shall not commence payment, until the Code, sixtieth (60th) day following Executive's Separation from Service (the "First Payment Date"). Any installment payments that would have been made to Executive during the sixty (60) day period immediately following Executive's Separation from Service but for the preceding sentence shall be paid to Executive on the First Payment Date and the remaining payments shall be made as provided in this Agreement. 19 (c) Specified Employee. Notwithstanding anything in this Agreement to the contrary, if Executive is deemed by the Company determines that at the Executive is time of Executive's Separation from Service to be a "specified employee" within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then 409A, to the extent delayed commencement of any payment or benefit that portion of the benefits to which Executive becomes is entitled to under this Agreement or otherwise on account is required in order to avoid a prohibited distribution under Section 409A, such portion of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit benefits shall not be provided until the date that is to Executive prior to the earlier of (A) six months and one day after (i) the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provision, and Executive's Separation from Service with the balance Company or (ii) the date of Executive's death. Upon the first business day following the expiration of the installments applicable Section 409A period, all payments deferred pursuant to the preceding sentence shall be payable paid in accordance with their original schedule. (b) All in-kind benefits provided a lump sum to Executive (or Executive's estate or beneficiaries), and expenses eligible for reimbursement any remaining payments due to Executive under this Agreement shall be paid as otherwise provided by herein. (d) Expense Reimbursements. To the Company or incurred by the extent that any reimbursements under this Agreement are subject to Section 409A, any such reimbursements payable to Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in to Executive no event shall any reimbursement be paid after the last day later than December 31 of the taxable year following the taxable year in which the expense was incurred. The incurred; provided, that Executive submits Executive's reimbursement request promptly following the date the expense is incurred, the amount of in-kind benefits provided or reimbursable expenses incurred reimbursed in one taxable year shall not affect the in-kind benefits to be provided or the expenses amount eligible for reimbursement in any subsequent year, other taxable year (except for any lifetime or other aggregate limitation applicable than medical expenses referred to medical expenses). Such in Section 105(b) of the Code, and Executive's right to reimbursement or in-kind benefits is under this Agreement will not be subject to liquidation or exchange for another benefit. (c) To the extent (e) Installments. Executive's right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that any are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" shall at all times be considered a separate and distinct payment as permitted under Section 409A of the Code, and to the extent that such 409A. Except as otherwise permitted under Section 409A, no payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits hereunder shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made accelerated or deferred unless such acceleration or deferral would not result in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment additional tax or interest pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The 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 the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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Section 409a. (a) Anything This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and shall be interpreted and construed consistently with such intent. All references in this Agreement to Executive's termination of employment (including within the contrary notwithstanding, if at definition of "Termination Date") shall, to the time extent used in a manner that affects the potential timing of amounts that are subject to Section 4...09A of the Code, mean Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be Code. Payments provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits herein are intended to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation exempt from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The 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 the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive maximum extent possible, under either the separation pay exemption pursuant to Treasury regulation §1.409A-1(b)(9)(iii) or any other person if any provisions as short-term deferrals pursuant to Treasury regulation §1.409A-1(b)(4). Each payment and benefit hereunder shall constitute a "separately identified" amount within the meaning of this Agreement are determined to constitute Treasury regulation §1.409A-2(b)(2). Any payment that is deferred compensation subject to Section 409A of the Code but do which is conditioned upon Executive's execution of the Release and which is to be paid during a designated period that begins in one taxable year and ends in a second taxable year shall be paid in the second taxable year. Notwithstanding any other provision in this Agreement, if Executive is a "specified employee," as defined in Section 409A of the Code, as of the Termination Date, then to the extent any amount payable under this Agreement (i) constitutes the payment of nonqualified deferred compensation, within the meaning of Section 409A of the Code, (ii) is payable upon Executive's separation from service, and (iii) would be payable prior to the six (6) month anniversary of Executive's separation from service, then payment of such amount shall be delayed until the earlier to occur of (a) the six (6) month anniversary of the date of such separation from service or (b) the date of Executive's death. In the event the terms of this Agreement would subject Executive to taxes or penalties under Section 409A of the Code ("409A Penalties"), Beacon and Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event shall any member of the Beacon Group be responsible for any 409A Penalties that arise in connection with any amounts payable under this Agreement. Any amount of expenses eligible for reimbursement, or in-kind benefit provided, during a calendar year shall not satisfy an exemption from, affect the amount of expenses eligible for reimbursement, or in-kind benefit to be -10- provided, during any other calendar year. Any reimbursement shall be made no later than the conditions of, such Section. last day of the calendar year following the calendar year in which the expenses to be reimbursed were incurred. The right to any reimbursement or in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit.
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Found in
BEACON ROOFING SUPPLY INC contract
Section 409a. (a) Anything in The parties agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Code and the regulations and guidance promulgated thereunder to the contrary notwithstanding, if at extent applicable (collectively "Code Section 409A"), and all provisions of this Agreement shall be construed in a manner consistent with the time requirements for avoiding taxes or penalties under Code Section 409A. In no event whatsoever will the Company be liable for a...ny additional tax, interest or penalties that may be imposed on Executive under Code Section 409A or any damages for failing to comply with Code Section 409A. (b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the Executive's separation payment of any amounts or benefits considered -8- "nonqualified deferred compensation" under Code Section 409A upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Code Section 409A and, for purposes of the Code, the Company determines that the any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service." If Executive is deemed on the date of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B)(i) of the Code, 409A(a)(2)(B), then with regard to the extent any payment or the provision of any benefit that the Executive becomes entitled to is considered nonqualified deferred compensation under this Agreement or otherwise Code Section 409A payable on account of the Executive's separation a "separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, service," such payment shall not be payable and such or benefit shall not be made or provided until at the date that which is the earlier of (A) (i) the expiration of the six months (6)-month period measured from the date of such "separation from service" of Executive, and one day after (ii) the date of Executive's separation from service, death (the "Delay Period"). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 13(b) (whether they would have otherwise been payable in a single sum or (B) in installments in the Executive's death. If any absence of such delayed cash payment is otherwise payable delay) shall be paid or reimbursed on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during business day following the six-month period but for the application of this provision, and the balance expiration of the installments shall be payable Delay Period to Executive in accordance with their original schedule. (b) All in-kind a lump sum, and any remaining payments and benefits provided and expenses eligible for reimbursement due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. (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 Company right to reimbursement or incurred 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, provided, that, this clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Internal Revenue Code Section 105(b) solely because such expenses are subject to a limit related to the Executive during period the time periods set forth arrangement is in this Agreement. All reimbursements effect and (iii) such payments shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after made on or before the last day of the Executive's taxable year following the taxable year in which the expense was incurred. The amount occurred. (d) For purposes of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such Code Section 409A, Executive's right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that receive any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such installment payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended shall be treated as a right to constitute receive a series of separate and distinct payments. Whenever a payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that under this Agreement may specifies a payment period with reference to a number of days (e.g., "payment shall be amended, as reasonably requested by either party, and as may made within thirty (30) days following the date of termination"), the actual date of payment within the specified period shall be necessary to fully comply with Section 409A determined at the reasonable discretion of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Company.
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True Nature Holding, Inc. contract
Section 409a. (a) Anything in (a)Notwithstanding any provision of this Agreement to the contrary notwithstanding, if at the time contrary, all provisions of the Executive's separation from service within the meaning of this Agreement are intended to comply with Section 409A of the Code, and the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment applicable Treasury regulations and administrative guidance iss...ued thereunder (collectively, "Section 409A") or benefit that the Executive becomes entitled to an exemption therefrom and shall be construed and administered in accordance with such intent. Any payments under this Agreement or otherwise on account of the Executive's that may be excluded from Section 409A either as separation pay due to an involuntary separation from service would or as a short-term deferral shall be considered deferred compensation otherwise subject excluded from Section 409A to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application maximum extent possible. For purposes of Section 409A(a)(2)(B)(i) of the Code, such 409A, any installment payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided treated as a separate payment. Any payments to be made under this Agreement upon a termination of Employee's employment shall only be made if such termination of employment constitutes a "separation from service" under Section 409A. (b)To the extent that any right to reimbursement of expenses or payment of any benefit in-kind under this Agreement constitutes nonqualified deferred compensation (within the meaning of Section 409A), (i) any such expense reimbursement shall be made by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after later than the last day of the taxable year following the taxable year in which the such expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect by Employee, (ii) the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit, and (iii) the extent that 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. 15 (c)Notwithstanding any provision in this Agreement to the contrary, (i) if any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" provided for herein would be subject to additional taxes and interest under Section 409A if Employee's receipt of the Code, and to the extent that such payment or benefit is payable upon not delayed until the Executive's termination earlier of employment, (A) the date of Employee's death or (B) the date that is six months after the Termination Date (such date, the "Section 409A Payment Date"), then such payments payment or benefits benefit shall not be provided to Employee (or Employee's estate, if applicable) until the Section 409A Payment Date, and (ii) to the extent any payment hereunder constitutes nonqualified deferred compensation (within the meaning of Section 409A), then each such payment which is conditioned upon Employee's execution of a release and which is to be paid or provided during a designated period that begins in one taxable year and ends in a second taxable year shall be payable only upon paid or provided in the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A later of the Code. To two taxable years. Notwithstanding the extent foregoing, the Company makes no representations 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. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The 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 the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of under this Agreement are determined to constitute deferred compensation subject to exempt from, or compliant with, Section 409A and in no event shall any member of the Code but do not satisfy an exemption from, Company Group be liable for all or the conditions of, such Section. any portion of any taxes, penalties, interest or other expenses that may be incurred by Employee on account of non-compliance with Section 409A.
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Daseke, Inc. contract
Section 409a. (a) Anything This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and any regulations and Treasury guidance promulgated thereunder ("Section 409A of the Code"). If the Company determines in good faith that any provision of this Agreement would cause Executive to incur an additional tax, penalty, or interest under Section 409A of the Code, the Company and Executive shall use reasonable efforts to reform ...such provision, if possible, in a mutually agreeable fashion to maintain to the contrary notwithstanding, if at maximum extent practicable the time original intent of the Executive's separation from service within applicable provision without violating the meaning provisions of Section 409A of the Code or causing the imposition of such additional tax, penalty, or interest under Section 409A of the Code. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Executive under this Agreement. (b) For purposes of Section 409A of the Code, the Company determines that the Executive is right to a "specified employee" within the meaning series of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement payments under this Agreement shall be provided by treated as a right to a series of separate payments. In no event may Executive, directly or indirectly, designate the Company calendar year of payment. (c) With respect to any reimbursement of expenses of, or incurred by the Executive during the time periods set forth in any provision of in-kind benefits to, Executive, as specified under this Agreement. All reimbursements Agreement, such reimbursement of expenses or provision of in-kind benefits shall be paid as soon as administratively practicable, but in no event shall any subject to the following conditions: (1) the expenses eligible for reimbursement be paid after or the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year (except year, except for any lifetime or other aggregate limitation applicable medical reimbursement arrangement providing for the reimbursement of expenses referred to medical expenses). Such in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment (d) "Termination of employment," "resignation," or benefit described words of similar import, as used in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment means, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that any payments under this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A that are payments of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code, Executive's "separation from service" as defined in Section 409A of the Code. - 14 - (e) To the extent that Section 409A of the Code but do would cause an adverse tax consequence to the Executive upon accelerating any payment of Termination Compensation pursuant to Section 5(h) upon a Change in Control ("Section 409A Payments"), a Change in Control shall not satisfy an exemption from, be deemed to occur with respect to such Section 409A Payments unless the Change in Control qualifies as a "Change in the Ownership or Effective Control of a Corporation or in the conditions of, Ownership of a Substantial Portion of the Assets of a Corporation" under Treasury Department Regulation 1.409A-3(i)(5), as revised from time to time in either subsequent regulations or other guidance and such Section. Section 409A Payments shall be made at the time such payments would have otherwise been made absent the Change in Control. (f) Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. (g) If a payment obligation under this Agreement arises on account of Executive's separation from service while Executive is a "specified employee" (as defined under Section 409A of the Code and determined in good faith by the Company), any payment of "deferred compensation" (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of Executive's estate following Executive's death.
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RumbleON, Inc. contract
Section 409a. (a) Anything General. The intent of the Parties is that the payments and benefits under this Agreement comply with or be exempt from Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively, "Section 409A") and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. (b) Separation from Service. Notwithstanding anything in this Agreement to the contrary notwithstanding, if at contrary, any compensatio...n or benefits payable under this Agreement that is considered nonqualified deferred compensation under Section 409A and is designated under this Agreement as payable upon Executive's termination of employment shall be payable only upon Executive's "separation from service" with the time of the Executive's separation from service Company within the meaning of Section 409A (a "Separation from Service") and, except as provided below, any such compensation or benefits described in Section 4 shall not be paid, or, in the case of installments, shall not commence payment, until the Code, sixtieth (60th) day following Executive's Separation from Service (the "First Payment Date"). Any installment payments that would have been made to Executive during the sixty (60) day period immediately following Executive's Separation from Service but for the preceding sentence shall be paid to Executive on the First Payment Date and the remaining payments shall be made as provided in this Agreement. (c) Specified Employee. Notwithstanding anything in this Agreement to the contrary, if Executive is deemed by the Company determines that at the Executive is time of Executive's Separation from Service to be a "specified employee" within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then 409A, to the extent delayed commencement of any payment or benefit that portion of the benefits to which Executive becomes is entitled to under this Agreement or otherwise on account is required in order to avoid a prohibited distribution under Section 409A, such portion of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit benefits shall not be provided until the date that is to Executive prior to the earlier of (A) six months and one day after (i) the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provision, and Executive's Separation from Service with the balance Company or (ii) the date of Executive's death. Upon the first business day following the expiration of the installments applicable Section 409A period, all payments deferred pursuant to the preceding sentence shall be payable paid in accordance with their original schedule. (b) All in-kind benefits provided a lump sum to Executive (or Executive's estate or beneficiaries), and expenses eligible for reimbursement any remaining payments due to Executive under this Agreement shall be paid as otherwise provided by herein. 19 (d) Expense Reimbursements. To the Company or incurred by the extent that any reimbursements under this Agreement are subject to Section 409A, any such reimbursements payable to Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in to Executive no event shall any reimbursement be paid after the last day later than December 31 of the taxable year following the taxable year in which the expense was incurred. The incurred; provided, that Executive submits Executive's reimbursement request promptly following the date the expense is incurred, the amount of in-kind benefits provided or reimbursable expenses incurred reimbursed in one taxable year shall not affect the in-kind benefits to be provided or the expenses amount eligible for reimbursement in any subsequent year, other taxable year (except for any lifetime or other aggregate limitation applicable than medical expenses referred to medical expenses). Such in Section 105(b) of the Code, and Executive's right to reimbursement or in-kind benefits is under this Agreement will not be subject to liquidation or exchange for another benefit. (c) To the extent (e) Installments. Executive's right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that any are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" shall at all times be considered a separate and distinct payment as permitted under Section 409A of the Code, and to the extent that such 409A. Except as otherwise permitted under Section 409A, no payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits hereunder shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made accelerated or deferred unless such acceleration or deferral would not result in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment additional tax or interest pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The 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 the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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Section 409a. (a) Anything in A. This Agreement shall at all times be administered and the provisions of this Agreement shall be interpreted consistent with the requirements of Section 409A. In the event that any provision of this Agreement does not comply with the requirements of Section 409A, Employer, in exercise of its sole discretion and without consent of Executive, may amend or modify this Agreement in any manner to the contrary notwithstanding, extent necessary to meet the requirements of Section 409A.... 16 B. This Agreement is intended to comply with Section 409A or an exemption thereunder, and will be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, 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 this 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 will be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement will be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment will only be made if such termination of employment constitutes a "separation from service" under Section 409A. C. Notwithstanding any other provision of this Agreement, if at the time of the Executive's separation from service within the meaning termination of Section 409A of the Code, the Company determines that the employment, Executive is a "specified employee" within the meaning of Executive," determined in accordance with Section 409A(a)(2)(B)(i) of the Code, then to the extent 409A, any payment or benefit that the Executive becomes entitled to payments and benefits provided under this Agreement or otherwise that constitute "nonqualified deferred compensation" subject to Section 409A that are provided to Executive on account of the Executive's Executive' s separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall will not be payable and such benefit shall not be provided paid until the first payroll date that is to occur following the earlier six-month anniversary of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If termination date ("Specified Executive Payment Date"). The aggregate amount of any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts payments that would otherwise have been paid made during the such six-month period but for will be paid in a lump sum on the application of this provision, and the balance of the installments shall Specified Executive Payment Date without interest and, thereafter, any remaining payments will be payable paid without delay in accordance with their original schedule. (b) All If Executive dies during the six-month period, any delayed payments will be paid to Executive's estate in a lump sum within thirty (30) calendar days after Executive's death. D. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefits provided and benefit under this Agreement or any document contemplated herein is determined to be subject to Section 409A, the amount of any such expenses eligible for reimbursement under this Agreement shall be provided by reimbursement, or the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall provision of any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred benefit, in one taxable calendar year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the 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. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The 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 the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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LMI AEROSPACE INC contract
