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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 The intent of the parties is that the payments and benefits under this Agreement to the contrary notwithstanding, if at the time of the Executive's separation comply with or be exempt from service within the meaning of Section 409A of the Code, Code and the Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date, ("Section 409A") and, accor...dingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the Company determines that the Executive is a "specified employee" within the meaning any provision 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 cause Executive to the 20 percent incur any 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" 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. (a) 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 -10- a "separation from service" with the Company within the meaning of Section 409A ("Separation from Service") and, except as provided under Section 10(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 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. (b) 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 (a) the expiration of the six (6)-month period measured from the date of Executive's Separation from Service or (b) the conditions of, date of Executive's death. Upon the first business day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 10(b) shall be paid in a lump sum to Executive, and any remaining payments due under this Agreement shall be paid as otherwise provided herein. (c) 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. (d) 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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Relypsa Inc contract
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 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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Restoration Robotics, Inc. contract
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 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. 13 (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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Tenet Healthcare Corp contract
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. (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 Executive Employment Agreement Page 13 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 Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the contrary notwithstanding, if at payment and the time of benefits set forth herein shall either be exempt from the Executive's separation from service within the meaning requirements of Section 409A of the Code, Code or any regulations or guidance thereunder ("Section 409A") or shall comply with the Company determines requirements of Section 409A. To the extent tha...t any amounts payable in accordance with this Agreement are subject to Section 409A, this Agreement shall be interpreted and administered in such a way as to comply with Section 409A to the maximum extent possible. Notwithstanding anything anywhere to the contrary, if the Executive is a "specified employee" within (within the meaning of Section 409A(a)(2)(B)(i) 409A), any payments or arrangements due upon a termination of the Code, then to Executive's employment under any arrangement that constitutes a "deferral of compensation" (within the extent meaning of Section 409A), and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A, shall be delayed and paid or provided on the earlier of (i) the date which is six months after the Executive's "separation from service" (as such term is defined in Section 409A) for any payment or benefit that reason other than death, and (ii) the Executive becomes entitled to date of the Executive's death. Each series of payments under this Agreement or otherwise on account shall be treated as separate payments for purposes of Section 409A. "Termination of employment," "resignation" or words of similar import, as used in this Agreement shall mean with respect to any payments subject to Section 409A, the Executive's separation "separation from service would be considered deferred compensation otherwise service" as defined by Section 409A. If any payment subject to Section 409A is contingent on the 20 percent additional tax imposed pursuant to Section 409A(a) delivery of a release by the Code as a result Executive and could occur in either of two calendar years, the application of Section 409A(a)(2)(B)(i) of payment will occur in the Code, such payment shall not be payable and such benefit shall not be provided until second calendar year. To 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 be provided by the Company constitute "nonqualified deferred compensation" subject to Section 409A, all such expenses or incurred by the Executive during the time periods set forth in this Agreement. All other reimbursements hereunder shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the expense was incurred. The amount of Executive, no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided or reimbursable expenses incurred in one any taxable year shall not in any way affect the in-kind benefits to be provided or the expenses eligible for reimbursement reimbursement, or in-kind benefits to provided, in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year, and (iii) the Executive's right to such reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another any other benefit. (c) To the extent that any payment or benefit described Nothing in this Agreement constitutes "non-qualified deferred compensation" under Section 409A shall be construed as a guarantee of the Code, and any particular tax treatment to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits Executive. The Executive shall be solely responsible for the tax consequences with respect to all amounts payable only upon under this Agreement, and in no event shall 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 Company have any responsibility or liability if this Agreement will be administered in accordance with does not meet any applicable requirements of 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. 409A.
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Found in
Bakhu Holdings, Corp. contract
Section 409a. (a) Anything To the extent applicable, it is intended that the payments and benefits provided under this Separation Agreement comply with the requirements of Section 409A, and this Separation Agreement shall be interpreted in a manner consistent with this Agreement to the contrary notwithstanding, if at intent. Solely for purposes of determining the time and form of payments due under this Separation Agreement or otherwise in connection with his termination of employment with the Executive's sep...aration Company, Executive shall not be deemed to have incurred a termination of employment unless and until he shall incur a "separation from service service" within the meaning of Section 409A. (b) It is intended that each payment or installment of a payment and each benefit provided under this Separation Agreement shall be treated as a separate "payment" for purposes of Section 409A of . (c) To the Code, extent that the Company determines and Executive determine that any provision of this Separation Agreement could reasonably be expected to result in Executive's being subject to the payment of interest or additional tax under Section 409A, the Company and Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then agree, to the extent reasonably possible as determined in good faith, to amend this Separation Agreement, retroactively, if necessary, in order to avoid the imposition of any payment such interest or benefit that the Executive becomes entitled to additional tax under Section 409A. All reimbursements and in-kind benefits provided 11 under this Separation 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 made or provided in accordance with their original schedule. (b) All the requirements of Section 409A to the extent that such reimbursements or in-kind benefits provided and are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Executive's lifetime (or during a shorter period of time specified in this Separation Agreement), (ii) the amount of 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 a 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 may not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable calendar year (except for any lifetime that a plan providing medical or other aggregate limitation health benefits may impose a generally applicable to medical expenses). Such limit on the amount that may be reimbursed or paid), (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 set off or liquidation or exchange for another any other benefit. (c) To the extent that (d) Notwithstanding any payment or benefit described other provision in this Agreement constitutes "non-qualified deferred compensation" under Section 409A Separation Agreement, if as of Executive's separation from service, the Code, and Executive is a "specified employee" as determined by the Company, then to the extent any amount payable or benefit provided under this Separation Agreement that the Company reasonably determines would be nonqualified deferred compensation within the meaning of Section 409A, for which payment is triggered by Executive's separation from service, and that under the terms of this Separation Agreement would be payable prior to the six-month anniversary of the Executive's separation from service, such payment or benefit is payable upon shall be delayed until the earlier to occur of (a) the six-month anniversary of such termination date or (b) the date of the Executive's termination death. In the case of employment, then taxable benefits that constitute deferred compensation, the Company, in lieu of a delay in payment, may require the Executive to pay the full costs of such payments or benefits during the period described in the preceding sentence and reimburse that Executive for such costs within thirty (30) calendar days after the end of such period. (e) Nothing herein shall be payable only upon construed as any guarantee by the Executive's "separation from service." The determination Company of whether any particular tax treatment of any income or payments to Executive provided pursuant to this Separation Agreement or other agreements or arrangements contemplated by this Separation Agreement, 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. Executive remains solely responsible for all applicable taxes on such income and payments. (f) To the extent the taxable year to Executive of any Separation Payment could be the later of any two years depending on the timing of the Executive's execution of the Release Agreement at Separation, such Separation Payment shall first be provided as early as practicable in the later year (together with any amounts that any provision would have been provided in the earlier year but for the application 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 subsection (g)) to the Executive extent such separation pay or any other person if any provisions of this Agreement are determined to constitute deferred compensation benefit is subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Code.
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EMCORE CORP contract
Section 409a. (a) Anything in The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations and guidance promulgated thereunder, and, accordingly, to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. For purposes of Secti...on 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 Executive's right to the extent receive 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 installment payments 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 treated as a right to receive -5- a series of separate and distinct payments. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement that is considered nonqualified deferred compensation. (b) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, the amount of expenses eligible for reimbursement, or in-kind benefits, provided by during any taxable year shall not affect the Company expenses eligible for reimbursement, or incurred by the Executive during the time periods set forth in-kind benefits to be provided, in this Agreement. All reimbursements any other taxable year, and 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 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 (c) Notwithstanding 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 provision of this Agreement constitutes "non-qualified deferred compensation" under to the contrary, if the Executive is considered a "specified employee" for purposes of 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 Code (as determined in accordance with the presumptions set forth methodology established by the Company as in Treasury Regulation effect on the Termination Date), any payment that constitutes nonqualified deferred compensation within the meaning of Section 1.409A-1(h). (d) The parties intend 409A of the Code that is otherwise due to the Executive under this Agreement will be administered during the six-month period following his separation from service (as determined in accordance with Section 409A of the Code. To Code) on account of his separation from service shall be accumulated and paid to the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A Executive on the first business day of the Code, the provision seventh month following his separation from service (the "Delayed Payment Date"). The Executive shall be read entitled to interest on any delayed cash payments from the date of termination to the Delayed Payment Date at a rate equal to the applicable federal short-term rate in such a manner so that all payments hereunder comply with effect under Section 409A 1274(d) of the Code. Each payment pursuant to this Agreement or Code for the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes month in which the Executive's separation from service occurs. If the Executive dies during the period between the Termination Date and the Delayed Payment Date, the amounts and entitlements delayed on account 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 be paid to the Executive or any other person if any provisions personal representative of this Agreement are determined his estate on the first to constitute deferred compensation subject to Section 409A occur of the Code but do not satisfy an exemption from, Delayed Payment Date or 30 days after the conditions of, such Section. date of the Executive's death.
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Chipotle Mexican Grill contract
Section 409a. (a) Anything The following rules shall apply, to the extent necessary, with respect to distribution of the payments and benefits, if any, to be provided to Executive under this Agreement. Subject to the provisions in this Section, the severance payments pursuant to this Agreement shall begin only upon the date of Executive's "separation from service" (determined as set forth below) which occurs on or after the date of Executive's termination of employment. (a) This Agreement is intended to compl...y with or be exempt from Code Section 409A and the contrary notwithstanding, if at parties hereto agree to interpret, apply and administer this Agreement in the time least restrictive manner necessary to comply therewith or be exempt therefrom and without resulting in any increase in the amounts owed hereunder by the Company. (b) It is intended that each installment of the Executive's separation from service within the meaning severance payments and benefits provided under this Agreement shall be treated as a separate "payment" for purposes of Section 409A of the Code, Code and the guidance issued thereunder ("Section 409A"). Neither Executive nor the Company determines that shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. (c) If, as of the date of Executive's "separation from service" from the Company, Executive is a "specified employee" (within the meaning of Section 409A), then: each installment of the severance payments and benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the short-term deferral period (as defined in Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i) 1.409A-1(b)(4) to the maximum extent permissible under Section 409A; and each installment of the Code, then to the extent any payment or benefit that the Executive becomes entitled to severance payments and benefits due under this Agreement or otherwise on account of that is not described in the preceding sentence and that would, absent this subsection, be paid within the six (6) month period following Executive's separation "separation from service would be considered deferred compensation otherwise subject to service" from 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 Company shall not be payable and such benefit shall not be provided paid until the date that is the earlier of (A) six (6) months and one day after such separation from service (or, if earlier, Executive's death), with any such installments that are required to be delayed being accumulated during the six (6) month period and paid in a lump sum on the date that is six (6) months and one day following Executive's separation from service, or (B) service and any subsequent installments, if any, being paid in accordance with the Executive's death. If dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of severance payments and benefits if and to the maximum extent that such delayed cash payment installment is otherwise payable on an installment basis, the first payment shall include deemed to be paid under a catch-up payment covering amounts separation pay plan that would otherwise have been paid during the six-month period but does not provide for a deferral of compensation by reason of the application of this provision, and Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for 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 exception 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 Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after later than the last day of the second taxable year following the taxable year in which the expense was incurred. separation from service occurs. 10 (d) The amount determination of whether and when Executive's separation from service from the Company has occurred shall be made in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section, "Company" shall include all persons with whom the Company would be considered a single employer as determined under Treasury Regulation Section 1.409A- 1(h)(3). (e) All reimbursements and in-kind benefits provided under this Agreement shall be made or reimbursable provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during Executive's lifetime (or during a shorter period of time specified in one taxable this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year shall may not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such following the year in which the expense is incurred and (iv) the right to reimbursement or in-kind benefits is not subject to set off or liquidation or exchange for another any other 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 (f) Notwithstanding anything herein to the extent that such payment contrary, the Company shall have no liability to Executive 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 to 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 other person if 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 in this Agreement that are determined intended to constitute deferred compensation subject to be exempt from or compliant with Section 409A of the Code but do are not satisfy an exemption from, so exempt or the conditions of, such Section. compliant.
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Section 409a. (a) Anything 20.1 General Compliance. This Agreement is intended to comply with or be exempt from Section 409A and shall 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 involun...tary 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. In the event the Company and the Executive determine that this Agreement or payments under this Agreement fail to comply with Section 409A, the Company and the Executive shall reasonably cooperate to modify or amend this Agreement to result in compliance under Section 409A while preserving to the contrary notwithstanding, extent practicable the intended economics of this Agreement. 20.2 Specified Employees. Notwithstanding any other provision of this Agreement, if at any payment or benefit provided to the time Executive in connection with his termination of the Executive's separation from service 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 Executive's separation from service, or (B) Termination Date (the "Specified Employee Payment Date") or, if earlier, on the Executive's death. If 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 for the application of this provision, and the balance of the installments Specified Employee Payment Date 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 20.3 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; 16 (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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Cytosorbents Corp contract
Section 409a. (a) Anything General Compliance. This Agreement is intended to comply with Section 409A or an exemption thereunder and shall 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 the co...ntrary 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. 15 (b) 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 Termination Date or, if earlier, on the Executive's separation from service, or (B) 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 (c) 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: (i) 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; (ii) 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 (iii) 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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LIVE VENTURES Inc contract
