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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Variations of a "Section 409a" Clause from Business Contracts
Section 409a. (a)
Anything in To the extent applicable, this Agreement
to shall be interpreted and administered in a manner so that any amount or benefit payable shall be paid or provided in a manner that is either exempt from or compliant with the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning requirements of Section 409A of the
Code, the Company determines Internal Revenue Code of 1986, as amended, and applicable guidance and regulations issued Amended... and Restated Executive Employment Agreement Page 12 thereunder ("Section 409A"). The parties agree to work together in good faith in an effort to comply with Section 409A and any provision that the Executive is a "specified employee" within the meaning of would cause this Agreement to fail to satisfy Section 409A(a)(2)(B)(i) of the Code, then 409A shall have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent any payment permitted by Section 409A). In addition, for purposes of this Agreement, each amount to be paid or benefit that to be provided to the Executive becomes entitled pursuant to under this Agreement or otherwise on account of the Executive's separation from service would shall be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code construed as a result of the application separate identified payment for purposes of Section 409A(a)(2)(B)(i) 409A. (b) With respect to any amount 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 Agreement, such expenses shall be provided reimbursed by the Company or incurred by within thirty (30) days following the date on which the Company receives the applicable documentation from the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, accordance with its expense reimbursement policies, but in no event shall any reimbursement be paid after later than the last day of the Executive's taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided Executive incurs the related expenses. In no event shall the reimbursements or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided under this Agreement in one taxable year affect the amount of reimbursements or the expenses eligible for reimbursement in-kind benefits to be provided in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year, nor will the Executive's right to reimbursement or in-kind benefits is not be subject to liquidation or exchange for another benefit. (c) To Notwithstanding any provision to the extent contrary in this Agreement, if the Executive is deemed as of the Executive's Termination Date to be a "Specified Employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit described that is required to be delayed in this Agreement constitutes "non-qualified deferred compensation" under compliance with Code Section 409A of the Code, and to the extent that 409A(a)(2)(B), such payment or benefit is payable upon (the "Delayed Payment") shall not be made or provided prior to the earlier of (i) the first business day of the seventh month measured from the date of 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 (within the meaning of Section 409A or (ii) the date of the Executive's death (the "Delay Period"). Upon the expiration of the Delay Period (the "Permissible Payment Date"), all Delayed Payments (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be made paid or reimbursed to the Executive in a lump sum on the Permissible Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided 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 normal payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment dates specified 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. them herein.
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Section 409a. (a)
Anything in To the extent applicable, this Agreement
to shall be interpreted and administered in a manner so that any amount or benefit payable shall be paid or provided in a manner that is either exempt from or compliant with the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning requirements of Section 409A of the
Code, the Company determines Internal Revenue Code of 1986, as amended, and applicable guidance and regulations issued thereun...der ("Section 409A"). The parties agree to work together in good faith in an effort to comply with Section 409A and any provision that the would cause this Agreement to fail to satisfy Section 409A shall have no force and effect until amended to comply therewith (which Amended and Restated Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then Employment Agreement Page 13 amendment may be retroactive to the extent any payment permitted by Section 409A). In addition, for purposes of this Agreement, each amount to be paid or benefit that to be provided to the Executive becomes entitled pursuant to under this Agreement or otherwise on account of the Executive's separation from service would shall be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code construed as a result of the application separate identified payment for purposes of Section 409A(a)(2)(B)(i) 409A. (b) With respect to any amount 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 Agreement, such expenses shall be provided reimbursed by the Company or incurred by within thirty (30) days following the date on which the Company receives the applicable documentation from the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, accordance with its expense reimbursement policies, but in no event shall any reimbursement be paid after later than the last day of the Executive's taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided Executive incurs the related expenses. In no event shall the reimbursements or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided under this Agreement in one taxable year affect the amount of reimbursements or the expenses eligible for reimbursement in-kind benefits to be provided in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year, nor will the Executive's right to reimbursement or in-kind benefits is not be subject to liquidation or exchange for another benefit. (c) To Notwithstanding any provision to the extent contrary in this Agreement, if the Executive is deemed as of the Executive's Termination Date to be a "Specified Employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit described that is required to be delayed in this Agreement constitutes "non-qualified deferred compensation" under compliance with Code Section 409A of the Code, and to the extent that 409A(a)(2)(B), such payment or benefit is payable upon (the "Delayed Payment") shall not be made or provided prior to the earlier of (i) the first business day of the seventh month measured from the date of 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 (within the meaning of Section 409A or (ii) the date of the Executive's death (the "Delay Period"). Upon the expiration of the Delay Period (the "Permissible Payment Date"), all Delayed Payments (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be made paid or reimbursed to the Executive in a lump sum on the Permissible Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided 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 normal payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment dates specified 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. them herein.
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Section 409a.
(a) Anything in this Agreement With respect to
the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of U.S. taxpayers, or others who may be subject to Section 409A of the Code, the
Company determines intent of the parties is 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 payments and benefits under this Ag
...reement comply with or otherwise on account of the Executive's separation be exempt from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) 409A of the Code as a result and the Department of the application of Section 409A(a)(2)(B)(i) of the Code, Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such payment shall not regulations or other guidance that may be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day issued after the Executive's separation from service, or (B) Effective Date, ("Section 409A") and, accordingly, to 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 maximum extent permitted, this Agreement shall be provided by interpreted to be in compliance therewith. If 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 determines that any payment or benefit described in provision of this Agreement constitutes "non-qualified deferred compensation" would cause Executive to incur any additional tax or interest under Section 409A of the Code, and (with specificity as to the reason therefor), the Company and Executive shall take commercially reasonable efforts to reform such provision to try to comply with or be exempt from Section 409A through good faith modifications to the minimum 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 reasonably appropriate to conform with Section 409A of 409A, provided that any such modifications shall not increase the Code. cost or liability to the Company. To the extent that any provision of this Agreement hereof 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 modified in order to preserve the payments comply with or be exempt from Section 409A, such modification shall be made in good faith and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive or any other person if any and the Company of the applicable provision without violating the provisions of Section 409A. Separation from Service. Notwithstanding any provision to the contrary in this Agreement are determined to constitute Agreement, no amount deemed deferred compensation subject to Section 409A of the Code shall be payable pursuant to Section 4 unless Executive's termination of employment constitutes a "separation from service" with the Company within the meaning of Section 409A ("Separation from Service") and, except as provided under Section 11(b) of this Agreement, any such amount shall not be paid, or in the case of installments, commence payment, until the sixtieth (60th) day following Executive's Separation from Service. Any installment payments that would have been made to Executive during the sixty (60) day period immediately following 11 Executive's Separation from Service but do for the preceding sentence shall be paid to Executive on the sixtieth (60th) day following Executive's Separation from Service and the remaining payments shall be made as provided in this Agreement. Specified Employee. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed at the time of his or her Separation from Service to be a "specified employee" for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Executive's benefits shall not satisfy an exemption from, be provided to Executive prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of Executive's Separation from Service or (ii) the conditions of, date of Executive's death. Expense Reimbursements. To the extent that any reimbursements payable pursuant to this Agreement are subject to the provisions of Section 409A, any such Section. reimbursements payable to Executive pursuant to this Agreement shall be paid to Executive no later than December 31 of the year following the year in which the expense was incurred, the amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year, and Executive's right to reimbursement under this Agreement will not be subject to liquidation or exchange for another benefit. Installments. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement shall be 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.
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Section 409a.
(a) Anything in The intent of the parties is that payments and benefits under this Agreement
comply with Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively "Section 409A") and, accordingly, to the
contrary notwithstanding, if at maximum extent permitted, this Agreement will be interpreted to be in compliance therewith. In no event whatsoever will the
time Company be liable for any additional tax, interest or penalty that may be imposed on Executive by ...Section 409A or damages for failing to comply with Section 409A. A termination of employment will 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 upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms will mean "separation from service." Notwithstanding anything to the Code, the Company determines that the contrary in this Agreement, if Executive is deemed on the date of termination to be a "specified employee" within the meaning of under 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 deferred compensation under this Agreement or otherwise 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 or benefit will not be payable and such benefit shall not be made or provided until the date that which 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 expiration of the six-month period but for measured from the application date of this provision, such "separation from service" of Executive, and (B) the balance date of Executive's death, to the extent required under Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 17 (whether they would have otherwise been payable in a single sum or in installments shall in the absence of such delay) will be payable paid or reimbursed to Executive in a lump sum and any remaining payments and benefits due under this Agreement will be paid or provided in accordance with their original schedule. (b) All the normal payment dates specified for them herein. To the extent that reimbursements or other in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall constitute "nonqualified deferred compensation" for purposes of Section 409A, (A) all expenses or other reimbursements hereunder will be provided by the Company made on 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 prior to 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 such expenses were incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in by Executive, (B) 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 will not be subject to liquidation or exchange for another benefit. (c) To benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year will in any way affect the extent that expenses eligible for reimbursement, or in-kind benefits to be provided, in any payment or benefit described in other taxable year. For purposes of Section 409A, Executive's right to receive any installment payments pursuant to this Agreement constitutes "non-qualified deferred compensation" is treated as a right to receive a series of separate and distinct payments. Whenever a payment under Section 409A this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period is within the sole discretion 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 Company. Notwithstanding any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read contrary, in such a manner so that all payments hereunder comply with Section 409A of the Code. Each no event will any payment pursuant to under this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment that constitutes "nonqualified deferred compensation" 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 be subject 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 offset by any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to amount unless otherwise permitted by 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 17.1 General Compliance. This Agreement is intended to comply with Section 409A or an exemption thereunder and shall be construed and administered in
accordance with such intent. 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 nonqualified deferred compensation payments under this Agreement that may be excluded from Section 409A... either as separation pay due to the contrary notwithstanding, if at the time of the Executive's an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a "separation from service" under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A. Specified Employees. Notwithstanding any other provision of this Agreement, if any payment or benefit provided to the Executive in connection with his termination of employment is determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A of the Code, the Company determines that and the Executive is determined to be a "specified employee" within the meaning of as defined in Section 409A(a)(2)(B)(i) of the Code, 409A(a)(2)(b)(i), then to the extent any such 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 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 date of the Executive's separation from service, or (B) termination or, if earlier, on the Executive's death. If death (the "Specified Employee Payment Date"). The aggregate 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 during before the six-month period but Specified Employee Payment Date [and interest on such amounts calculated based on the applicable federal rate published by the Internal Revenue Service for the application of this provision, and month in which the balance of the installments Executive's separation from service occurs] shall be payable paid to the Executive in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule. (b) All 12 17.2 Reimbursements. To the extent required by Section 409A, each reimbursement or in-kind benefits benefit provided and expenses eligible for reimbursement under this Agreement shall be provided by in accordance with the Company following: (a) the amount of expenses eligible for reimbursement, or incurred by in-kind benefits provided, during each calendar year cannot affect the Executive during the time periods set forth expenses eligible for reimbursement, or in-kind benefits to be provided, in this Agreement. All reimbursements any other calendar year; (b) any reimbursement of an eligible expense shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after to the Executive on or before the last day of the taxable calendar year following the taxable calendar 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 incurred; and (c) any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement reimbursements or in-kind benefits is under this Agreement shall 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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Section 409a. (a)
Anything in To the extent applicable, this Agreement
to shall be interpreted and administered in a manner so that any amount or benefit payable shall be paid or provided in a manner that is either exempt from or compliant with the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning requirements of Section 409A of the
Code, the Company determines Internal Revenue Code of 1986, as amended, and applicable guidance and regulations issued thereun...der ("Section 409A"). The parties agree to work together in good faith in an effort to comply with Section 409A and any provision that the Executive is a "specified employee" within the meaning of would cause this Agreement to fail to satisfy Section 409A(a)(2)(B)(i) of the Code, then 409A shall have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent any payment permitted by Section 409A). In addition, for purposes of this Agreement, each amount to be paid or benefit that to be provided to the Executive becomes entitled pursuant to under this Agreement or otherwise on account of the Executive's separation from service would shall be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code construed as a result of the application separate identified payment for purposes of Section 409A(a)(2)(B)(i) 409A. Amended and Restated Executive Employment Agreement Page 13 (b) With respect to any amount 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 Agreement, such expenses shall be provided reimbursed by the Company or incurred by within thirty (30) days following the date on which the Company receives the applicable documentation from the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, accordance with its expense reimbursement policies, but in no event shall any reimbursement be paid after later than the last day of the Executive's taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided Executive incurs the related expenses. In no event shall the reimbursements or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided under this Agreement in one taxable year affect the amount of reimbursements or the expenses eligible for reimbursement in-kind benefits to be provided in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year, nor will the Executive's right to reimbursement or in-kind benefits is not be subject to liquidation or exchange for another benefit. (c) To Notwithstanding any provision to the extent contrary in this Agreement, if the Executive is deemed as of the Executive's Termination Date to be a "Specified Employee" within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit described that is required to be delayed in this Agreement constitutes "non-qualified deferred compensation" under compliance with Code Section 409A of the Code, and to the extent that 409A(a)(2)(B), such payment or benefit is payable upon (the "Delayed Payment") shall not be made or provided prior to the earlier of (i) the first business day of the seventh month measured from the date of 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 (within the meaning of Section 409A or (ii) the date of the Executive's death (the "Delay Period"). Upon the expiration of the Delay Period (the "Permissible Payment Date"), all Delayed Payments (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be made paid or reimbursed to the Executive in a lump sum on the Permissible Payment Date, and any remaining payments and benefits due under this Agreement shall be paid or provided 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 normal payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment dates specified 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. them herein.
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Section 409a. (a)
Anything in this Agreement to the contrary notwithstanding, if at the time The intent of the
Executive's separation from service within the meaning of Section 409A of the Code, the Company determines parties is 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 payments and benefits under this Agreement
or otherwise on account comply with Internal Revenue Cod...e Section 409A and the regulations and guidance promulgated thereunder (collectively, "Code Section 409A") and, accordingly, to the maximum extent permitted, this Agreement will be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification will be made in good faith and will, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive 13 and the Company of the Executive's separation from service would be considered deferred compensation otherwise subject to applicable provision without violating the 20 percent additional tax imposed pursuant to provisions of Code Section 409A(a) of 409A. To 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 extent that is the earlier of (A) six months and one day after the Executive's separation from service, reimbursements 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 other in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (a) all expenses or other reimbursements hereunder will be provided by the Company made on 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 prior to 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 such expenses were incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in by Executive, (b) 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 exchanges for another benefit. benefit, and (c) To no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any table year will in any way affect the extent that expenses eligible for reimbursement, or in-kind benefits to be provided, in 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 other taxable year. (b) A termination of employment, then such payments or benefits employment shall not be payable only upon the Executive's "separation from service." The determination deemed to have occurred for purposes 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 providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is ambiguous as to its compliance with also a "separation from service" within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service." Notwithstanding anything to the contrary in this Agreement, if the Employee 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), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a "separation from service," such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the Code, six (6)-month period measured from the provision date of such "separation from service" of the Employee, and (B) the date of the Employee's death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 17(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be read paid or reimbursed to the Employee in such a manner so that all lump sum, and any remaining payments hereunder comply and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. (c) For purposes of Code Section 409A of 409A, the Code. Each payment Employee's right to receive any installment payments pursuant to this Agreement or shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the Restrictive Covenants actual date of payment within the specified period shall be within the sole discretion of the Company. (d) Notwithstanding any other provision of this Agreement is intended to constitute a separate the contrary, in no event shall any payment under this Agreement that constitutes "nonqualified deferred compensation" 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 Code Section 409A of the Code and all related rules and regulations in order be subject 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 offset by any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to amount unless otherwise permitted by Code 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 It is intended that any payments or benefits provided pursuant to this Agreement
satisfy, to the
contrary notwithstanding, if at greatest extent possible, the
time of exemptions from the
Executive's separation from service within the meaning application of Section 409A of the
Code, Code ("Section 409A") provided under Treasury Regulation Sections 1.409A-1(b)(4) and 1.409A-1(b)(5). Notwithstanding the foregoing, if 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 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, 409A, 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 In addition, if at the time of Executive's separation from service Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A any payment or benefit that Executive becomes entitled to under this Agreement will on account of Executive's separation from service shall not be administered payable and such benefit shall not be provided until the date that is the earlier of (i) six (6) 4 months and one (1) day after Executive's separation from service and (ii) Executive's death. If any such delayed 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 (6)-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with Section 409A of their original schedule. In addition, interest at the Code. To Prime Rate as reported in the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision Wall Street Journal shall be read in such a manner so added to any payment that all payments hereunder comply with Section 409A of the Code. Each payment is delayed pursuant to this Agreement or Paragraph 5, for the Restrictive Covenants Agreement is intended to constitute a separate time period during which such 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. was delayed.
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Section 409a.
(a) Anything in The provisions of this Agreement
are intended to
the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of comply with Section 409A of the
Code, Internal Revenue Code of 1986, as amended (the "Code") and any final regulations and guidance promulgated thereunder ("Section 409A") or an exemption thereunder and shall be construed and administered in a manner consistent with the
requirements for avoiding taxes or penalties under Sec...tion 409A. The Company determines that the and Executive is a "specified employee" within the meaning agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A(a)(2)(B)(i) of the Code, then to 409A. 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 will 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 reimbursed 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 costs and expenses eligible for reimbursement under this Agreement shall be provided or in-kind benefits, except as otherwise permitted by Section 409A, (a) 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 benefit, (b) the extent amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; provided that the foregoing clause (b) shall not be violated with regard to expenses reimbursed under any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under arrangement covered by Section 409A 105(b) of the Code, and Code solely because such expenses are subject to a limit related to the extent that such payment or benefit period the arrangement is payable upon the Executive's termination of employment, then in effect and (c) 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 on or before 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 last day of the Code. To taxable year following the extent that taxable year in which Executive incurred the expense. 9 A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement is ambiguous as to its compliance with providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination constitutes a "Separation from Service" within the meaning of Section 409A and, for purposes of the Code, the any such provision of this Agreement references to a "termination," "termination of employment" or like terms shall mean Separation from Service. 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 shall be read in such a manner so that all payments hereunder comply with excluded from Section 409A of to the Code. maximum extent possible. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to installment payable hereunder shall constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree 1.409A-2(b), including Treasury Regulation Section 1.409A-2(b)(2)(iii). Each payment that is made within the terms of the "short-term deferral" rule set forth in Treasury Regulation Section 1.409A-1(b)(4) is intended to meet the "short-term deferral" rule. Each other payment is intended to be a payment upon an involuntary termination from service and payable pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii), et. seq., to the maximum extent permitted by that regulation, with any amount that is not exempt from Code Section 409A being subject to Code Section 409A. Notwithstanding anything to the contrary in this Agreement Agreement, if Executive is a "specified employee" within the meaning of Section 409A at the time of Executive's termination, then only that portion of the severance and benefits payable to Executive pursuant to this Agreement, if any, and any other severance payments or separation benefits which may be amended, as reasonably requested by either party, and as may be necessary to fully comply with considered deferred compensation under Section 409A that is payable on account of the Code Executive's termination (other than by reason of death) (together, the "Deferred Compensation Separation Benefits") that are due to Executive on or within the six (6) month period following Executive's termination will accrue during such six (6) month period and will become payable in one lump sum cash payment on the date six (6) months and one (1) day following the date of Executive's termination of employment. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Executive dies following termination but prior to the six (6) month anniversary of Executive's termination date, then any payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Executive's death and all related rules and regulations other Deferred Compensation Separation Benefits will be payable in order accordance with the payment schedule applicable to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation each payment 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. benefit.
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Section 409a.
(a) Anything in The parties intend for 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 c...onsidered 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 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 Any term used in this Agreement which is defined in Section 409A of the Code or the Restrictive Covenants Treasury Regulations thereunder shall have the meaning set forth therein unless otherwise specifically defined herein. Any obligations under this Agreement is intended to constitute that arise in connection with the Executive's "termination of employment", "termination" or other similar references shall only be triggered if the termination of employment or termination qualifies as a separate payment for purposes "separation from service" within the meaning of Section l.409A-l (h) of the Treasury Regulation Section 1.409A-2(b)(2). Regulations. 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 Treasury Regulations thereunder 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 or exception from, or the conditions of, Section 409A of the Code. Each payment under this Agreement, including each installment of Base Salary payable pursuant to Section 8(a)(i) of this Agreement, shall be considered a separate payment and not one of a series of payments for purposes of Section 409A of the Code. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that(i) any reimbursement shall be for expenses incurred during such Section. period of time specified in this Agreement, (ii) 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 provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
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