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. View More
Found in Fusion Pharmaceuticals Inc. contract

Variations of a "Section 409a" Clause from Business Contracts

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 Employee 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." (b) 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 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). 1.409A 2(b)(2). The parties 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) (c) The Company makes no representation or warranty and shall have no liability to the Executive Employee 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. 13 EMPLOYEE IS HEREBY ADVISED THAT HE HAS UP TO 21 CALENDAR DAYS TO REVIEW THIS AGREEMENT AND TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT. HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES AND TO RECEIVE THE SUMS AND BENEFITS IN SECTIONS 2 AND 3(a), (b), (c) and (d) ABOVE, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST EMPLOYER, UNLESS SPECIFICALLY STATED OTHERWISE IN THIS AGREEMENT. View More
Found in AvalonBay Communities, Inc. contract
Section 409a. (a) Anything in This Agreement is not intended to constitute a "nonqualified deferred compensation plan" within the meaning of Section 409A. Notwithstanding the foregoing, if and to the extent that: (i) any payment or benefit is determined by the Company to constitute "non-qualified deferred compensation" subject to Section 409A; (ii) such payment or benefit under this Agreement or otherwise is provided to the contrary notwithstanding, if at Executive and the time Executive is a "specified emplo...yee" (within the meaning of Section 409A and as determined pursuant to procedures established by the Company); and (iii) such payment or benefit must be delayed for six months from the Executive's Date of Termination (or an earlier date) in order to comply with Section 409A(a)(2)(B)(i) of the Code and not cause the Executive to incur any additional tax under Section 409A, then the Company will delay making any such payment or providing such benefit until the expiration of such six month period. Any payment or benefit due upon a termination of the Executive's separation from service employment that represents a "deferral of compensation" within the meaning of Section 409A of the Code, the Company determines that shall only be paid or provided to the Executive is upon a "specified employee" within "separation from service" (within the meaning of Section 409A(a)(2)(B)(i) Treas. Reg. 1.409A-1(h)). If the Executive dies within six months following such separation from service, any such delayed payments or benefits shall not be further delayed, and shall be immediately payable to his estate in accordance with the applicable provisions of the Code, then this Agreement. (b) Notwithstanding anything to the extent contrary herein, any payment or benefit that the Executive becomes entitled to under this Agreement Section 5 or otherwise on account of the Executive's separation that is exempt from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed Section 409A 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, Treas. Reg. 1.409A-1(b)(9)(v)(A), (B) 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 (C) shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after or provided to the Executive only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the second taxable year of the Executive following the taxable year of the Executive in which the "separation from service" occurs; and provided further that such expenses are reimbursed no later than the last day of the third taxable year following the taxable year of the Executive in which the "separation from service" occurs. For purposes of this Section 20(b), the taxable year of the Executive's "separation from service" is the year determined in accordance with the Code. (c) Except as otherwise expressly provided herein, to the extent any expense was incurred. The reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefits provided or reimbursable expenses incurred benefit, in one taxable calendar year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime life-time or other aggregate limitation applicable to medical expenses). Such expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To 15 (d) For the extent that any purposes of this Agreement, each payment made pursuant to Section 5(b), 5(c)(iv) or benefit described in this Agreement constitutes "non-qualified deferred compensation" 5(v) shall be deemed to be separate payments, and amounts payable 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 5 shall be payable only upon the Executive's "separation from service." The determination deemed not to be a "deferral 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 compensation" subject to Section 409A to the extent provided in the exceptions in Treas. Reg. Sections 1.409A-1(b)(4) ("short-term deferrals") and (b)(9) ("separation pay plans," including the exception under subparagraph (iii)) and other applicable provisions of Treas. Reg. Section 1.409A-1 through A-6. (e) For purposes of applying the Code but do not satisfy an exemption from, or provisions of Section 409A to this Agreement, each separately identified amount to which the conditions of, such Section. Executive is entitled under this Agreement shall be treated as a separate payment within the meaning of Section 409A. In addition, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments under Section 409A, including Treas. Reg. Section 1.409A-2(b)(2)(iii). View More
Found in Guaranty Bancorp contract
Section 409a. (a) a) Anything in this the 2018 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 the 2018 Agreement or otherwise on account of the Executive's separation from service would be con...sidered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) b) The parties intend that this the 2018 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 the 2018 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) c) The determination of whether and when a separation from service has occurred shall be made by the Company in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this the 2018 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. View More
Found in Novume Solutions, Inc. contract
Section 409a. (a) Anything in This Agreement is not intended to constitute a "nonqualified deferred compensation plan" within the meaning of Section 409A. Notwithstanding the foregoing, if and to the extent that: (i) any payment or benefit is determined by the Company to constitute "non-qualified deferred compensation" subject to Section 409A; (ii) such payment or benefit under this Agreement or otherwise is provided to the contrary notwithstanding, if at Executive and the time Executive is a "specified emplo...yee" (within the meaning of Section 409A and as determined pursuant to procedures established by the Company); and (iii) such payment or benefit must be delayed for six months from the Executive's Date of Termination (or an earlier date) in order to comply with Section 409A(a)(2)(B)(i) of the Code and not cause the Executive to incur any additional tax under Section 409A, then the Company will delay making any such payment or providing such benefit until the expiration of such six month period. Any payment or benefit due upon a termination of the Executive's separation from service employment that represents a "deferral of compensation" within the meaning of Section 409A of the Code, the Company determines that shall only be paid or provided to the Executive is upon a "specified employee" within "separation from service" (within the meaning of Section 409A(a)(2)(B)(i) Treas. Reg. 1.409A-1(h)). If the Executive dies within six months following such separation from service, any such delayed payments or benefits shall not be further delayed, and shall be immediately payable to his estate in accordance with the applicable provisions of the Code, then this Agreement. 14 (b) Notwithstanding anything to the extent contrary herein, any payment or benefit that the Executive becomes entitled to under this Agreement Section 5 or otherwise on account of the Executive's separation that is exempt from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed Section 409A 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, Treas. Reg. 1.409A-1(b)(9)(v)(A), (B) 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 (C) shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after or provided to the Executive only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the second taxable year of the Executive following the taxable year of the Executive in which the "separation from service" occurs; and provided further that such expenses are reimbursed no later than the last day of the third taxable year following the taxable year of the Executive in which the "separation from service" occurs. For purposes of this Section 20(b), the taxable year of the Executive's "separation from service" is the year determined in accordance with the Code. (c) Except as otherwise expressly provided herein, to the extent any expense was incurred. The reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefits provided or reimbursable expenses incurred benefit, in one taxable calendar year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime life-time or other aggregate limitation applicable to medical expenses). Such expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To (d) For the extent that any purposes of this Agreement, each payment made pursuant to Section 5(b), 5(c)(iv) or benefit described in this Agreement constitutes "non-qualified deferred compensation" 5(v) shall be deemed to be separate payments, and amounts payable 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 5 shall be payable only upon the Executive's "separation from service." The determination deemed not to be a "deferral 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 compensation" subject to Section 409A to the extent provided in the exceptions in Treas. Reg. Sections 1.409A-1(b)(4) ("short-term deferrals") and (b)(9) ("separation pay plans," including the exception under subparagraph (iii)) and other applicable provisions of Treas. Reg. Section 1.409A-1 through A-6. (e) For purposes of applying the Code but do not satisfy an exemption from, or provisions of Section 409A to this Agreement, each separately identified amount to which the conditions of, such Section. Executive is entitled under this Agreement shall be treated as a separate payment within the meaning of Section 409A. In addition, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments under Section 409A, including Treas. Reg. Section 1.409A-2(b)(2)(iii). View More
Found in 2 Contracts from Guaranty Bancorp
Section 409a. (a) Anything in (a)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 that the Executive is a "specified employee" within the meaning Internal Revenue Code of Secti...on 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to 1986, as amended, and applicable guidance and regulations issued thereunder ("Section 409A"). Any payments under this Agreement or otherwise on account of the Executive's that may be excluded from Section 409A either as separation pay due to an involuntary separation from service would or as a short-term deferral shall be considered deferred compensation otherwise subject excluded from Section 409A to the 20 percent additional tax imposed maximum extent possible. In addition, for purposes of this Agreement, each amount to be paid or benefit to be provided to the Executive pursuant to Section 409A(a) of the Code this Agreement shall be 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 (c)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 compliance with Code Section 409A(a)(2)(B), such payment or benefit (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 separation from service (within the meaning of Section 409A or (ii) the date of the Executive's death (the "Delay Period"). Upon the expiration of the Delay Period (the "Permissible Payment Date"), all Delayed Payments (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum on the Permissible Payment Date, and any remaining payments 13 and benefits due under this Agreement constitutes "non-qualified deferred compensation" shall be paid or provided in accordance with the normal payment dates specified for them herein. (d)Notwithstanding the foregoing, nothing herein be construed as a guarantee by the Company or its affiliates of any particular tax effect to the Executive or his heirs under this Agreement and the Executive, or to the extent applicable, his heirs, shall be responsible for all income, excise tax, penalties and interest under Code Section 409A. The Company and its affiliates shall not be liable to Executive or his heirs for any payment made under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A of the Code, and to the extent that such payment Code 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 any adverse tax consequences under Code 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. otherwise. View More
Found in SAExploration Holdings, Inc. contract
Section 409a. (a) Anything in this Agreement Notwithstanding anything to the contrary notwithstanding, contained in this Agreement, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, Internal Revenue Code of 1986, as amended (the "Code"), the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this ...Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent 20% 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) (i) six months and one day after the Executive's separation from service, or (B) (ii) the Executive's death. If any such delayed cash payment is death (the "Six Month Delay Rule"). (b) For purposes of this Section, amounts payable under the Agreement should not be considered a deferral of compensation subject to Section 409A to the extent provided in Treasury Regulation Section 1.409A-1(b)(4) (i.e., short-term deferrals), Treasury Regulation Section 1.409A-1(b)(9) (i.e., separation pay plans, including the exception under subparagraph (iii)), and other applicable provisions of Treasury Regulations Sections 1.409A-1 through A-6. (c) To the extent that the Six Month Delay Rule applies to payments 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, the Six Month Delay Rule, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind (d) To the extent that the Six Month Delay Rule applies to the provision of benefits provided (including, but not limited to, life insurance and expenses eligible for reimbursement under this Agreement medical insurance), such benefit coverage shall nonetheless be provided by the Company or incurred by to 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 first six months 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 his separation from service has occurred (the "Six Month Period"), provided that, during such Six-Month Period, the Executive pays to the Company, on a monthly basis in advance, an amount equal to the Monthly Cost (as defined below) of such benefit coverage. The Company shall be reimburse the Executive for any such payments made by the Executive in accordance with a lump sum not later than 30 days following the presumptions set forth sixth month anniversary of the Executive's separation from service. For purposes of this subparagraph, "Monthly Cost" means the minimum dollar amount which, if paid by the Executive on a monthly basis in Treasury Regulation Section 1.409A-1(h). (d) advance, results in the Executive not being required to recognize any federal income tax on receipt of the benefit coverage during the Six Month Period. (e) 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) (f) 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. View More
Found in Fraud Protection Network, Inc. contract
Section 409a. (a) Anything in (a)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 that the Executive is a "specified employee" within the meaning Internal Revenue Code of Secti...on 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to 1986, as amended, and applicable guidance and regulations issued thereunder ("Section 409A"). Any payments under this Agreement or otherwise on account of the Executive's that may be excluded from Section 409A either as separation pay due to an involuntary separation from service would or as a short-term deferral shall be considered deferred compensation otherwise subject excluded from Section 409A to the 20 percent additional tax imposed maximum extent possible. In addition, for purposes of this Agreement, each amount to be paid or benefit to be provided to the Executive pursuant to Section 409A(a) of the Code this Agreement shall be 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 (c)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 compliance with Code Section 409A(a)(2)(B), such payment or benefit (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 13 date of the Executive's separation from service (within the meaning of Section 409A or (ii) the date of the Executive's death (the "Delay Period"). Upon the expiration of the Delay Period (the "Permissible Payment Date"), all Delayed Payments (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be 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 constitutes "non-qualified deferred compensation" shall be paid or provided in accordance with the normal payment dates specified for them herein. (d)Notwithstanding the foregoing, nothing herein be construed as a guarantee by the Company or its affiliates of any particular tax effect to the Executive or his heirs under this Agreement and the Executive, or to the extent applicable, his heirs, shall be responsible for all income, excise tax, penalties and interest under Code Section 409A. The Company and its affiliates shall not be liable to Executive or his heirs for any payment made under this Agreement that is determined to result in an additional tax, penalty, or interest under Section 409A of the Code, and to the extent that such payment Code 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 any adverse tax consequences under Code 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. otherwise. View More
Found in SAExploration Holdings, 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 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), 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 14 from the provision date of such "separation from service" of Executive, and (B) the date of Executive'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 Executive in such a manner so that all lump sum, and any remaining payments hereunder comply and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. (c) For purposes of Code Section 409A of the Code. Each payment 409A, Executive'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. View More
Found in Tenet Healthcare Corp contract
Section 409a. (a) Anything 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 with s...uch 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. 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. 7 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. 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. 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. View More
Found in Surna Inc. contract
Section 409a. (a) Anything in It is intended that this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of will comply with Section 409A of the Code, Code and any regulations and guidelines promulgated thereunder (collectively, "Section 409A"), to the Company determines that extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. Notwithstanding any provision to the contrary i...n this Agreement, if the Executive is deemed on the date of his "separation from service" (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company to be a "specified employee" within (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i) of the Code, 1.409A-1(i)), then with regard to the extent any payment or 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 service" that is required to be considered deferred compensation otherwise subject to the 20 percent additional tax imposed delayed pursuant to Section 409A(a) 409A(a)(2)(B) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, (after taking into account any applicable exceptions to such requirement), such payment shall not be payable and such or benefit shall not be made or provided until on the date that is the earlier of (A) (i) the expiration of the six months and one day after (6)-month period measured from the date of the Executive's separation "separation from service, service," or (B) (ii) the date of the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, death (the "Delay Period"). 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 Delay Period, all payments and benefits delayed pursuant to this Section 7 (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 normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered deferred compensation under Section 409A, references to the Executive's "termination of employment" (and corollary terms) with 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 construed to refer to the Executive's "separation from service" (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be made within thirty (30) days after termination of employment"), the actual date of payment within the specified period shall be within the sole discretion of the Company. Whenever payments under this Agreement are to be made in no event installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. If, under the terms of this Agreement, it is possible for a payment that is subject to Section 409A to be made in two separate taxable years, payment shall be made in the later taxable year. With respect to any reimbursement or in-kind benefit arrangements of the Company that constitute deferred compensation for purposes of Section 409A, except as otherwise permitted by Section 409A, the following conditions shall be paid after applicable: (i) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year, (ii) any reimbursement must be made 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 incurred, and (iii) 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 Company shall not have any obligation to indemnify or otherwise protect the extent that Executive from the obligation to pay any payment taxes, interest 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 penalties 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. View More
Found in TRANS WORLD ENTERTAINMENT CORP contract