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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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Fusion Pharmaceuticals Inc. contract
Variations of a "Section 409a" Clause from Business Contracts
Section 409a. (a) Anything in It is the Parties' intention that all payments, benefits and entitlements received by the Executive under this Agreement be provided in a manner that does not impose any additional taxes, interest or penalties on the Executive with respect to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of such payments, benefits and entitlements under Section 409A of the Code, and its implementing regulations ("Section 409A"), and the... Company determines provisions of this Agreement shall be construed and administered in accordance with such intent. Each of the Parties has used, and will continue to use, its best reasonable efforts to avoid the imposition of such additional taxes, interest or penalties, and the Parties agree to work together in good faith to amend this Agreement, and to structure any payment, benefit or other entitlement received by the Executive, in a manner that avoids imposition of such additional taxes, interest or penalties while preserving the affected payment, benefit or entitlement to the maximum extent practicable and maintaining the basic financial provisions of this Agreement without violating any applicable requirement of Section 409A. For purposes of this Agreement, "Code" shall mean the Internal Revenue Code of 1986, as amended, and any reference to a particular section of the Code shall include any provision that modifies, replaces or supersedes such section. (b) All payments to be made to the Executive hereunder, to the extent they constitute a deferral of compensation subject to the requirements of Section 409A (after taking into account all exclusions applicable to such payments under Section 409A), shall be made no later, and shall not be made any earlier, than at the time or times specified herein for such payments to be made, except as otherwise permitted or required under Section 409A. The date of the Executive's "separation from service", as defined in Section 409A (and as determined by applying the default presumptions in Treas. Reg. §1.409A-1(h)(1)(ii)), shall be 3 treated as the date of the Executive's termination of employment for purposes of determining the time of payment of any amount that becomes payable to the Executive hereunder upon the Executive's termination of employment and that is properly treated as a deferral of compensation subject to Section 409A after taking into account all exclusions applicable to such payment under Section 409A. In addition, no such payment or distribution of deferred compensation shall be made to the Executive prior to the earlier of (a) the expiration of the six (6) month period measured from the date of the Executive's "separation from service", or (b) the date of the Executive's death, if the Executive is deemed at the time of such separation from service to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A and if such delayed commencement is otherwise required to avoid additional tax under Section 409A(a)(2) of the Code, then Code. All payments and benefits that are delayed pursuant to the immediately preceding sentence shall be paid to the Executive in a lump sum upon the first business day immediately following the earlier of (x) the expiration of such six (6) month period or (y) the Executive's date of death, without interest. Each individual installment payment that becomes payable under this Agreement, including each payment under Section 1(a)(iii), shall be treated as a right to receive a series of "separate payments" for purposes of Section 409A and Treasury Reg. §1.409A-2(b)(2)(iii). To the extent any that the payment or benefit that reimbursement of any expense or the Executive becomes entitled to provision of any in-kind benefits under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject under Section 409A (after taking into account all exclusions applicable to such reimbursements and benefits under Section 409A): (i) the 20 percent additional tax imposed pursuant to Section 409A(a) payment or reimbursement of such expenses or the provision of in-kind benefits in one of the Code as a result Executive's taxable years shall not affect the payment or reimbursement of any expense or payment of in-kind benefits in any other taxable year of the application of Section 409A(a)(2)(B)(i) of the Code, such Executive; (ii) any 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 reimbursement 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 made in accordance with the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid Company's applicable plans and policies as soon as soon as administratively practicable, practicable after such expense has been incurred, but in no any event shall any reimbursement be paid after 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 incurred; and (iii) any such payment 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 benefit may not subject to liquidation be liquidated or exchange exchanged 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. benefit.
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Found in
Diamond Offshore Drilling contract
Section 409a. (a) Anything in Compliance with Section 409A. This Agreement is intended to comply with section 409A of the Code and its corresponding regulations, or an exemption, and payments may only be made under this Agreement upon an event and in a manner permitted by section 409A, to the contrary notwithstanding, if at extent applicable. Severance benefits under the time Agreement are intended to be exempt from section 409A of the Executive's separation Code under the "short-term deferral" exception, to ...the maximum extent applicable, and then under the "separation pay" exception, to the maximum extent applicable. For purposes of section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon a "separation from service service" within the meaning of Section such term under 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 each 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 made under this Agreement shall be provided by treated as a separate payment and the Company or incurred by the Executive during the time periods set forth in right to a series of installment payments under this Agreement. All reimbursements shall Agreement is to be paid treated as soon as administratively practicable, but in a right to a series of separate payments. In no event shall the Executive, directly or indirectly, designate the calendar year of payment. 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 is for expenses incurred during the Executive's lifetime (or during a shorter 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 paid after provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the taxable calendar year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred, and (iv) 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 (b) Payment Delay. Notwithstanding any payment or benefit described provision in this Agreement constitutes "non-qualified deferred compensation" to the contrary, if at the time of the Executive's separation from service with the Company, the Company has securities which are publicly-traded on an established securities market and the Executive is a "specified employee" (as defined in section 409A of the Code) and it is necessary to postpone the commencement of any severance payments otherwise payable pursuant to this Agreement as a result of such separation from service to prevent any accelerated or additional tax under Section section 409A of the Code, and then the Company will postpone the commencement of the payment of any such payments hereunder (without any reduction in such payments ultimately paid or provided to the extent Executive) 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 are not otherwise exempt from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section section 409A of the Code, until the provision shall first payroll date that occurs after the date that is six (6) months following the 8 Executive's separation from service with the Company. If any payments are postponed due to such requirements, such postponed amounts will be read paid in such a manner so lump sum to the Executive on the first payroll date that all payments hereunder comply occurs after the date that is six (6) months following the Executive's separation from service with Section 409A the Company. If the Executive dies during the postponement period prior to the payment of the Code. Each payment pursuant to this Agreement or postponed amount, the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes amounts withheld 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 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 of this Agreement are determined to constitute deferred compensation subject to Section 409A personal representative of the Code but do not satisfy an exemption from, or Executive's estate within sixty (60) days after the conditions of, such Section. date of the Executive's death.
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Found in
ANTARES PHARMA, INC. contract
Section 409a. (a) Anything in To the extent necessary to comply with, and avoid penalties under, Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), 7 final regulations issued by the Internal Revenue Service and any additional guidance issued by the Internal Revenue Service with respect to Code Section 409A, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to the contrary notwithstanding, if at the time be in compliance therewith. All payments of n...onqualified deferred compensation subject to Section 409A of the Code to be made upon a termination of employment under this Agreement may only be made upon the Executive's separation "separation from service within service" from the Company (within the meaning of Section 409A of the Code, Code). (b) Notwithstanding anything to the Company determines that contrary in this Agreement, if the Executive is deemed on the date of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B)(i) of the Code, 409A(a)(2)(B), then with regard to the extent any payment or the provision of any benefit that the Executive becomes entitled to is considered deferred compensation under this Agreement or otherwise Code Section 409A payable on account of the Executive's separation a "separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, service," such payment shall not be payable and such or benefit shall not be made or provided until the date that which is the earlier of (A) (i) the expiration of the six months (6)-month period measured from the date of such "separation from service" of the Executive, and one day after (ii) the date of the Executive's separation from service, or (B) death, to the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, extent required under Code Section 409A. Upon 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 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 in the absence of such delay) shall be payable paid or reimbursed to the Executive in accordance with their original schedule. (b) All in-kind a lump sum, and any remaining payments and benefits provided and expenses eligible for reimbursement due under this Agreement shall be paid or provided by in accordance with the Company or incurred by normal payment dates specified for them herein. (c) Notwithstanding anything to the Executive during the time periods set forth contrary contained in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but Agreement, in no event shall will the payments and benefits under this Agreement payable in the first six (6) months of the Executive's "separation from service" exceed two times (2x) the lesser of: (i) the Executive's annualized compensation for the year immediately preceding the year in which the Executive's "separation from service" occurs; or (ii) the maximum amount that may be taken into account under a qualified pension plan under Code Section 401(a)(17) for the year in which the Executive's "separation from service" occurs. If six months base salary (plus any reimbursement bonus amount, if applicable) exceeds this limit, such excess amount will not be paid after at any time. (d) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made 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 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 Executive, (ii) any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall 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. 8 (e) For purposes of Code Section 409A, the Executive's right to receive any installment payments pursuant to this Agreement constitutes "non-qualified deferred compensation" shall be 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 shall be 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. (f) Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision contrary, in no event shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each 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 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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Found in
CAPELLA EDUCATION CO contract
Section 409a. (a) Anything in A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amount or benefit upon or following a termination of employment that is nonqualified deferred compensation 13 subject to the contrary notwithstanding, if at the time Section 409A of the Executive's separation Code ("Section 409A") 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 shall mean "separation from service" within the Code, meaning of Section 409A. Notwithstanding anything to 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 that term under Section 409A(a)(2)(B)(i) 409A(a)(2)(B) of the Code, 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 not be payable and such or benefit shall not be made or provided until the date that which is the earlier of (A) (i) the expiration of the six months (6)-month period measured from the date of such "separation from service" of Executive, and one day after the Executive's separation from service, or (B) the date of Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, death, to the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during extent required under Section 409A. Upon the six-month period but for the application of this provision, and the balance expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 11(a) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be payable paid or reimbursed to Executive in accordance with their original schedule. (b) All in-kind a lump sum, and all remaining payments and benefits provided and expenses eligible for reimbursement due under this Agreement shall be paid or provided by in accordance with the Company normal payment dates specified for them herein. (b) To the extent that any severance payments or incurred by benefits payable pursuant to this Agreement are not "nonqualified deferred compensation" for purposes of Section 409A, then such payment or benefit shall commence upon the Executive during first scheduled payment date immediately following the time periods set forth date that the release is executed, delivered and no longer subject to revocation (the "Release Effective Date"), and the first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Executive's termination of employment, and all payments made thereafter shall continue as provided herein. To the extent that any severance payments or benefits payable pursuant to this Agreement are "nonqualified deferred compensation" for purposes of Section 409A, then such payments or benefits shall be made in accordance with their regular schedule, but shall not commence until the sixtieth (60th) day following Executive's termination of employment or later, to the extent provided in Section 11(c). (c) To the extent that reimbursements or other in-kind benefits under this Agreement. All Agreement constitute "nonqualified deferred compensation" for purposes of Section 409A, (i) all such reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after made on or 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 applicable 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, (ii) any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to such reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. (d) For purposes of Section 409A, Executive's right to receive installment payments pursuant to this Agreement 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 actual date of payment within the specified period shall be within the sole discretion of the Company. (e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes "nonqualified deferred compensation" for purposes of Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A. 14 (f) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A other compensation is to be paid for a specified continuing period of time beyond the Code, and to the extent that such payment or benefit is payable upon the date of 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 employment 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 Company's payroll practices (or other similar term), the payments 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 such base salary or other compensation shall be read made upon such schedule as in such a manner so that all payments hereunder comply with Section 409A effect upon the date 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 termination, but 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. less frequently than monthly.
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Section 409a. (a) Anything a. Although the Company does not guarantee the tax treatment of any payments under this Agreement, the intent of the Parties is that the payments and benefits under this Agreement be exempt from, or comply with, Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and all Treasury Regulations and guidance promulgated thereunder ("Code Section 409A") and to the maximum extent permitted this Agreement shall be limited, construed and interpreted in accordance wit...h such intent. In no event whatsoever shall the Company or its affiliates or their respective officers, directors, employees or agents be liable for any additional tax, interest or penalties that may be imposed on the Executive by Code Section 409A or damages for failing to comply with Code Section 409A. b. Notwithstanding any other provision of this Agreement to the contrary notwithstanding, contrary, to the extent that any reimbursement of expenses constitutes "deferred compensation" under Code Section 409A, such reimbursement shall be provided no later than December 31st of the year following the year in which the expense was incurred (or, where applicable, no later than such earlier time required by this Agreement). The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year. c. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), the right to receive payments in the form of installment payments shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment shall at all times be considered a separate and distinct payment. Whenever a payment under this Agreement may be paid within a specified period, the 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 to the contrary, if at the time of the Executive's separation from service within the meaning of (as defined in Code Section 409A of the Code, the Company determines that 409A), the Executive is a "specified employee" within "Specified Executive", then the meaning Company will defer the payment or commencement of any nonqualified deferred compensation subject to Code Section 409A(a)(2)(B)(i) 409A payable upon separation from service (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six (6) months following separation from service or, if earlier, the earliest other date as is permitted under Code Section 409A (and any amounts that otherwise would have been paid during this deferral period will be paid in a lump sum on the day after the expiration of the Code, then to the extent any payment six (6)- month period or benefit that the such shorter period, if applicable). The Executive becomes entitled to under will be a "Specified Executive" for purposes of this Agreement or otherwise if, on account the date of the Executive's separation from service would be considered deferred compensation otherwise subject service, the Executive is an individual who is, under the method of determination adopted by the Company designated as, or within the category of executives deemed to be, a "Specified Executive" within the 20 percent additional tax imposed pursuant meaning and in accordance with Treasury Regulation Section 1.409A-1(i). The Company shall determine in its sole discretion all matters relating to Section 409A(a) of the Code who is designated as a result of "Specified Executive" and the application of Section 409A(a)(2)(B)(i) and effects of the Code, change in such payment determination. 9 e. Notwithstanding anything in this Agreement or elsewhere to the contrary, a termination of employment shall not be payable and such benefit shall not be provided until the date that is the earlier deemed to have occurred for purposes 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 providing for the payment of any amounts or benefits that constitute "non-qualified deferred compensation" within the meaning of Code Section 409A upon or following a termination of the Code, Executive's employment unless such termination is also a "separation from service" within the provision shall be read in such a manner so that all payments hereunder comply with meaning of Code Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment and, 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 such provision of this Agreement are determined Agreement, references to constitute deferred compensation subject to Section 409A a "termination," "termination of employment" or like terms shall mean "separation from service" and the Code but do not satisfy an exemption from, date of such separation from service shall be the date of termination for purposes of any such payment or the conditions of, such Section. benefits.
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Found in
Surna Inc. contract
Section 409a. (a) Anything in this This Agreement shall be interpreted to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of avoid any additional tax under 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 Internal Revenue Code. If any payment or benefit that cannot be provided or made 3 at the Executive becomes entitled to time s...pecified without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter, when such sanctions will not be imposed. All reimbursements and in-kind benefits, provided under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise that are 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 409A, shall be payable made or provided in accordance with their original schedule. (b) All the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive's lifetime (or during a shorter period of time specified in the Agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided and during a calendar year, may not affect the expenses eligible for reimbursement, or in-kind services provided in any other calendar year, (iii) the reimbursement under this Agreement shall of an eligible expense 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 before the last day of the taxable calendar year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred, and (iv) 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 Notwithstanding anything in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment contrary, any compensation or benefit is payable under this Agreement upon the Executive's termination of employment, then such payments or benefits employment shall be payable only upon the Executive's "separation from service." The determination service" with the Company within the meaning of whether Section 409A (a "Separation from Service") and, except as provided below, any such compensation or benefits described in Section 4(b) shall not be paid, or, in the case of installments, shall not commence payment, until the sixtieth (60th) day following Executive's Separation from Service (the "First Payment Date"). Any installment payments that would have been made to Executive during the sixty (60) day period immediately following Executive's Separation from Service but for the preceding sentence shall be paid to Executive on the First Payment Date and when a separation from service has occurred the remaining payments shall be made as provided in this Agreement. Executive's right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A. Notwithstanding any other provision of this Agreement to the contrary, and solely if and to the extent necessary for compliance with Section 409A and not otherwise eligible for exclusion from the requirements of Section 409A, if as of the date of Executive's Separation from Service from the Company, he is deemed to be a "specified employee" (within the meaning of Section 409A), no payment or other distribution required to be made to the Executive hereunder (including any payment of cash, any transfer of property and any provision of taxable benefits) as a result of his Separation from Service shall be made until the date that is the earlier of (1) the expiration of the six-month period measured from the date of the Executive's Separation from Service or (2) the date of the Executive's death. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to the foregoing shall be paid to the Executive in a lump sum, and all 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 This Agreement shall be interpreted to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of avoid any additional tax under 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 Internal Revenue Code. If any payment or benefit that cannot be provided or made at the Executive becomes entitled to time spe...cified without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter, when such sanctions will not be imposed. All reimbursements and in-kind benefits, provided under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise that are 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 409A, shall be payable made or provided in accordance with their original schedule. (b) All the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive's lifetime (or during a shorter period of time specified in the Agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided and during a calendar year, may not affect the expenses eligible for reimbursement, or in-kind services provided in any other calendar year, (iii) the reimbursement under this Agreement shall of an eligible expense 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 before the last day of the taxable calendar year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred, and (iv) 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 Notwithstanding anything in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment contrary, any compensation or benefit is payable under this Agreement upon the Executive's termination of employment, then such payments or benefits employment shall be payable only upon the Executive's "separation from service." The determination service" with the Company within the meaning of whether Section 409A (a "Separation from Service") and, except as provided below, any such compensation or benefits described in Section 4(b) shall not be paid, or, in the case of installments, shall not commence payment, until the sixtieth (60th) day following Executive's Separation from Service (the "First Payment Date"). Any installment payments that would have been made to Executive during the sixty (60) day period immediately following Executive's Separation from Service but for the preceding sentence shall be paid to Executive on the First Payment Date and when a separation from service has occurred the remaining payments shall be made as provided in this Agreement. Executive's right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A. Notwithstanding any other provision of this Agreement to the contrary, and solely if and to the extent necessary for compliance with Section 409A and not otherwise eligible for exclusion from the requirements of Section 409A, if as of the date of Executive's Separation from Service from the Company, he is deemed to be a "specified employee" (within the meaning of Section 409A), no payment or other distribution required to be made to the Executive 5 hereunder (including any payment of cash, any transfer of property and any provision of taxable benefits) as a result of his Separation from Service shall be made until the date that is the earlier of (1) the expiration of the six-month period measured from the date of the Executive's Separation from Service or (2) the date of the Executive's death. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to the foregoing shall be paid to the Executive in a lump sum, and all 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 A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amount or benefit upon or following a termination of employment that is nonqualified deferred compensation subject to the contrary notwithstanding, if at the time Section 409A of the Executive's separation Code ("Section 409A") unless such termination is also a "separation from service service" within the meaning of Section 409A and, fo...r purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service" within the Code, meaning of Section 409A. Notwithstanding anything to 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 that term under Section 409A(a)(2)(B)(i) 409A(a)(2)(B) of the Code, 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 not be payable and such or benefit shall not be made or provided until the date that which is the earlier of (A) (i) the expiration of the six months (6)-month period measured from the date of such "separation from service" of Executive, and one day after the Executive's separation from service, or (B) the date of Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, death, to the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during extent required 13 under Section 409A. Upon the six-month period but for the application of this provision, and the balance expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 11(a) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be payable paid or reimbursed to Executive in accordance with their original schedule. (b) All in-kind a lump sum, and all remaining payments and benefits provided and expenses eligible for reimbursement due under this Agreement shall be paid or provided by in accordance with the Company normal payment dates specified for them herein. (b) To the extent that any severance payments or incurred by benefits payable pursuant to this Agreement are not "nonqualified deferred compensation" for purposes of Section 409A, then such payment or benefit shall commence upon the Executive during first scheduled payment date immediately following the time periods set forth date that the release is executed, delivered and no longer subject to revocation (the "Release Effective Date"), and the first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon Executive's termination of employment, and all payments made thereafter shall continue as provided herein. To the extent that any severance payments or benefits payable pursuant to this Agreement are "nonqualified deferred compensation" for purposes of Section 409A, then such payments or benefits shall be made in accordance with their regular schedule, but shall not commence until the sixtieth (60th) day following Executive's termination of employment or later, to the extent provided in Section 11(c). (c) To the extent that reimbursements or other in-kind benefits under this Agreement. All Agreement constitute "nonqualified deferred compensation" for purposes of Section 409A, (i) all such reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after made on or 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 applicable 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, (ii) any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to such reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. (d) For purposes of Section 409A, Executive's right to receive installment payments pursuant to this Agreement 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 actual date of payment within the specified period shall be within the sole discretion of the Company. (e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes "nonqualified deferred compensation" for purposes of Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A. (f) Unless this Agreement provides a specified and objectively determinable payment schedule to the contrary, to the extent that any payment of base salary or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A other compensation is to be paid for a specified continuing period of time beyond the Code, and to the extent that such payment or benefit is payable upon the date of 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 employment 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 Company's payroll practices (or other similar term), the payments 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 such base salary or other compensation shall be read made upon such schedule as in such a manner so that all payments hereunder comply with Section 409A effect upon the date 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 termination, but 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. less frequently than monthly.
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Section 409a. (a) Anything in this This Agreement shall be interpreted to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of avoid any additional tax under 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 Internal Revenue Code. If any payment or benefit that cannot be provided or made at the Executive becomes entitled to time spe...cified without incurring sanctions under Section 409A, then such benefit or payment shall be provided in full at the earliest time thereafter, when such sanctions will not be imposed. All reimbursements and in-kind benefits, provided under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise that are 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 409A, shall be payable made or provided in accordance with their original schedule. (b) All the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Executive's lifetime (or during a shorter period of time specified in the Agreement), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided and during a calendar year, may not affect the expenses eligible for reimbursement, or in-kind services provided in any other calendar year, (iii) the reimbursement under this Agreement shall of an eligible expense 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 before the last day of the taxable calendar year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred, and (iv) 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 Notwithstanding anything in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment contrary, any compensation or benefit is payable under this Agreement upon the Executive's termination of employment, then such payments or benefits employment shall be payable only upon the Executive's "separation from service." The determination service" with the Company within the meaning of whether Section 409A (a "Separation from Service") and, except as provided below, any such compensation or benefits described in Section 4(b) shall not be paid, or, in the case of installments, shall not commence payment, until the sixtieth (60th) day following Executive's Separation from Service (the "First Payment Date"). Any installment payments that would have been made to Executive during the sixty (60) day period immediately following Executive's Separation from Service but for the preceding sentence shall be paid to Executive on the First Payment Date and when a separation from service has occurred the remaining payments shall be made as provided in this Agreement. Executive's right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A. Notwithstanding any other provision of this Agreement to the contrary, and solely if and to the extent necessary for compliance with Section 409A and not otherwise eligible for exclusion from the requirements of Section 409A, if as of the date of Executive's Separation from Service from the Company, he is deemed to be a "specified employee" (within the meaning of Section 409A), no payment or other distribution required to be made to the Executive hereunder (including any 4 payment of cash, any transfer of property and any provision of taxable benefits) as a result of his Separation from Service shall be made until the date that is the earlier of (1) the expiration of the six-month period measured from the date of the Executive's Separation from Service or (2) the date of the Executive's death. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to the foregoing shall be paid to the Executive in a lump sum, and all 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 necessary to comply with, and avoid penalties under, Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), final regulations issued by the Internal Revenue Service and any additional guidance issued by the Internal Revenue Service with respect to Code Section 409A, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to the contrary notwithstanding, if at the time be in compliance therewith. All payments of non...qualified deferred compensation subject to Section 409A of the Code to be made upon a 7 termination of employment under this Agreement may only be made upon the Executive's separation "separation from service within service" from the Company (within the meaning of Section 409A of the Code, Code). (b) Notwithstanding anything to the Company determines that contrary in this Agreement, if the Executive is deemed on the date of termination to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B)(i) of the Code, 409A(a)(2)(B), then with regard to the extent any payment or the provision of any benefit that the Executive becomes entitled to is considered deferred compensation under this Agreement or otherwise Code Section 409A payable on account of the Executive's separation a "separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, service," such payment shall not be payable and such or benefit shall not be made or provided until the date that which is the earlier of (A) (i) the expiration of the six months (6)-month period measured from the date of such "separation from service" of the Executive, and one day after (ii) the date of the Executive's separation from service, or (B) death, to the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, extent required under Code Section 409A. Upon 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 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 in the absence of such delay) shall be payable paid or reimbursed to the Executive in accordance with their original schedule. (b) All in-kind a lump sum, and any remaining payments and benefits provided and expenses eligible for reimbursement due under this Agreement shall be paid or provided by in accordance with the Company or incurred by normal payment dates specified for them herein. (c) Notwithstanding anything to the Executive during the time periods set forth contrary contained in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but Agreement, in no event shall will the payments and benefits under this Agreement payable in the first six (6) months of the Executive's "separation from service" exceed two times (2x) the lesser of: (i) the Executive's annualized compensation for the year immediately preceding the year in which the Executive's "separation from service" occurs; or (ii) the maximum amount that may be taken into account under a qualified pension plan under Code Section 401(a)(17) for the year in which the Executive's "separation from service" occurs. If six months base salary (plus any reimbursement bonus amount, if applicable) exceeds this limit, such excess amount will not be paid after at any time. (d) To the extent that reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made 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 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 Executive, (ii) any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall 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. (e) For purposes of Code Section 409A, the Executive's right to receive any installment payments pursuant to this Agreement constitutes "non-qualified deferred compensation" shall be 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 shall be 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. 8 (f) Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision contrary, in no event shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each 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 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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CAPELLA EDUCATION CO contract
