Category
Industry
Companies
Contracts
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 The intent of the parties is that payments and benefits under this Agreement are exempt from or comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively "Code Section 409A") and, accordingly, to the contrary notwithstanding, if at maximum extent permitted, this Agreement shall be interpreted to be exempt from or in compliance therewith. If the time Executive notifies the Company (with specificity as to the reason therefo...r) that the Executive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with the Executive, reform such provision to attempt to comply with or exempt from Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with or be exempt from Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company of the Executive's separation applicable provision without violating the provisions of Code Section 409A. For the sake of clarity, the Company does not hereby agree to indemnify the Executive for liabilities incurred as a result of Code Section 409A. (b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Code Section 409A and, for purposes of the Code, the Company determines that any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service." 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 at the date that which is the earlier of (A) 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 (B) 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 9 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 24(b) (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 normal payment dates specified for them herein. (c) To the extent that reimbursements or incurred by the Executive during the time periods set forth in other in-kind benefits under this Agreement. All Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) all expenses or other reimbursements hereunder 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 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, (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 for another benefit. (c) To benefit, and (C) 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. (d) 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. (e) 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.
View More
Found in
Penn Virginia Corporation contract
Section 409a. (a) Anything in The intent of the parties is that payments and benefits under this Agreement are exempt from or comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively "Code Section 409A") and, accordingly, to the contrary notwithstanding, if at maximum extent permitted, this Agreement shall be interpreted to be exempt from or in compliance therewith. If the time Executive notifies the Company (with specificity as to the reason therefo...r) that the Executive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with the Executive, reform such provision to attempt to comply with or exempt from Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with or be exempt from Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company of the Executive's separation applicable provision without violating the provisions of Code Section 409A. For the sake of clarity, the Company does not hereby agree to indemnify the Executive for liabilities incurred as a result of Code Section 409A. 7 (b) 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 amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Code Section 409A and, for purposes of the Code, the Company determines that any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service." 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 at the date that which is the earlier of (A) 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 (B) 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 24(b) (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 normal payment dates specified for them herein. (c) To the extent that reimbursements or incurred by the Executive during the time periods set forth in other in-kind benefits under this Agreement. All Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) all expenses or other reimbursements hereunder 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 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, (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 for another benefit. (c) To benefit, and (C) 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. (d) 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. (e) 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.
View More
Found in
Penn Virginia Corporation contract
Section 409a. (a) Anything in To the extent that the Corporation determines that any compensation or benefit payable under this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service constitutes nonqualified deferred compensation within the meaning of Section 409A of the Code, and any Treasury Regulations and other interpretive guidance issued thereunder (collectively referred to in this Section as "Section 409A"), the Company determines Agreement is intended, wit...h respect to such compensation or benefit, to comply with the applicable requirements of Section 409A or satisfy an applicable exception thereto, and this Agreement shall be construed and administered in accordance with such intent, provided that the Corporation shall not be required to assume any increased economic burden in connection therewith. Although the Corporation intends to administer this Agreement so that it will comply with the requirements of Section 409A, the Corporation does not represent or warrant that this Agreement will comply with Section 409A or any other provision of federal, state, local or foreign law. Neither the Corporation nor its directors, officers, employees or advisers shall be liable to the Executive (or any other individual claiming a benefit through the Executive) for any tax, interest, or penalties the Executive may owe as a result of compensation or benefits paid under this Agreement, and the Corporation shall have no obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes pursuant to Section 409A or otherwise or to make any "gross up" payments in respect thereof. Notwithstanding any provision of this Agreement to the contrary, any compensation or benefit payable hereunder that constitutes a deferral of compensation under Section 409A shall be subject to the following: (a) The parties agree that if any compensation or benefit payable hereunder may be subject to the requirements of Section 409A, the Corporation may adopt such amendments to this Agreement or take any other actions which are intended, with respect to such compensation or benefit, to either (a) comply with the applicable requirements of Section 409A or (b) satisfy an applicable exception thereto. (b) If the Executive is deemed at the time of his separation from service to be a "specified employee" for purposes of Code Section 409A(a)(2)(B)(i), to the extent delayed commencement of any portion of the compensation or benefits to which the Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under 16 Code Section 409A(a)(2)(B)(i) (any such delayed commencement, a "Payment Delay"), such compensation or benefits shall be provided to the Executive on the earlier to occur of (1) the date that is six months and one day from the date of the Executive's "separation from service" with the Corporation or (2) the Executive's death. Upon the earlier of such dates, all payments and benefits deferred pursuant to the Payment Delay shall be paid in a lump sum to the Executive, and any remaining compensation and benefits due under the Agreement shall be paid or provided as otherwise set forth herein. The determination of whether the Executive is a "specified employee" within the meaning for purposes of Code Section 409A(a)(2)(B)(i) as of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account time of the Executive's his separation from service would shall be considered deferred compensation otherwise subject to made by the 20 percent additional tax imposed pursuant to Section 409A(a) of Corporation in accordance with the Code as a result of the application terms of Section 409A(a)(2)(B)(i) 409A. (c) Each separately identified amount and each installment payment, to which the Executive is entitled to payment shall be deemed to be a separate payment for purposes of Section 409A. (d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A, (i) the Code, such right to payment or reimbursement or in-kind benefits shall not be payable and such benefit subject to liquidation or exchange for any other benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year of the Executive shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated by any lifetime and other annual limits provided until under the date that is the earlier of (A) six months Corporation's health plans and one day after the Executive's separation from service, or (B) the Executive's death. If any (iii) 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 payments 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 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 Executive's taxable year following the taxable year in which the expense was incurred. (e) The amount payment of in-kind benefits provided any compensation 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 benefit that 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 requirements of Section 409A of the Code, and may not be accelerated except 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 permitted by 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. 409A.
View More
Found in
COMPUTER TASK GROUP INC contract
Section 409a. (a) Anything in The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively "Code Section 409A") and, accordingly, to the contrary notwithstanding, if at maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the time Executive notifies the Company (with specificity as to the reason therefor) that the Executive believes tha...t any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with the Executive, reform such provision to attempt to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A. such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company of the Executive's separation applicable provision without violating the provisions of Code Section 409A. (b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Code Section 409A and, for purposes of the Code, the Company determines that any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service." 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 at the date that which is the earlier of (A) 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 (B) 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 24(b) (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 normal payment dates specified for them herein. (c) To the extent that reimbursements or incurred by the Executive during the time periods set forth in other in-kind benefits under this Agreement. All Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) all expenses or other reimbursements hereunder 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 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, (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 for another benefit. (c) To benefit, and (C) 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. (d) 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. (e) 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.
View More
Found in
Tronox Ltd contract
Section 409a. (a) If Executive determines, in good faith, that any compensation or benefits provided by this Agreement may result in the application of Section 409A of the the Code, Executive shall provide written notice thereof (describing in reasonable detail the basis therefor) to Employer, and Employer shall, in consultation with Executive, modify this Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of "deferred compensation" within the meaning... of such Section 409A of the Code or in order to comply with the provisions of Section 409A of the Code, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and without any diminution in the value of the payments to Executive. Any payments that, under the terms of this Agreement, qualify for the "short-term" deferral exception under Treasury Regulations Section 1.409A-1(b)(4), the "separation pay" exception under Treasury Regulations Section 1.409A-1(b)(9)(iii) or another exception under Section 409A of the Code will be paid under the applicable exceptions to the greatest extent possible. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A of the Code. 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 considered a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent and if 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 is considered deferred compensation otherwise compensations subject to the 20 percent interest, penalties and additional tax imposed pursuant to Section 409A(a) 409A of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall not be payable and such benefit shall not be provided until prior to the date that is the earlier of (A) (i) six months and one day after the Executive's separation from service, service or (B) the (ii) Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, In no event shall the first payment shall include date of termination of Executive's employment be deemed to occur until Executive experiences a catch-up payment covering amounts that would otherwise have been paid during "separation from service" within the six-month period but for the application meaning of this provision, and the balance Section 409A of the installments Code, and notwithstanding anything contained herein to the contrary, the date on which such separation from service takes place shall be payable in accordance with their original schedule. (b) the date of termination. All in-kind benefits reimbursements provided and expenses eligible for reimbursement under this Agreement shall be provided by in accordance 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 in no event shall any reimbursement be paid after the last day requirements of Section 409A of the taxable year following Code, including, where applicable, the taxable year in which requirement that (A) the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in eligible for reimbursement during one taxable calendar year shall will not affect the in-kind benefits to be provided or the amount of expenses eligible for reimbursement in any other taxable calendar year; (B) the reimbursement of an eligible expense will be made no later than the last day of the calendar year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such following the calendar year in which the expense is incurred; and (C) the right to any reimbursement or in-kind benefits is will not be subject to liquidation or exchange for another benefit. (c) To Notwithstanding the extent foregoing, Employer makes no representation or covenant to ensure that any payment or benefit described in the payments and benefits under this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment are exempt from, 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 compliant 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
PACIFIC MERCANTILE BANCORP contract
Section 409a. (a) Anything in To the extent that the Corporation determines that any compensation or benefit payable under this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service constitutes nonqualified deferred compensation within the meaning of Section 409A of the Code, and any Treasury Regulations and other interpretive guidance issued thereunder (collectively referred to in this Section as "Section 409A"), the Company determines Agreement is intended, wit...h respect to such compensation or benefit, to comply with the applicable requirements of Section 409A or satisfy an applicable exception thereto, and this Agreement shall be construed and administered in accordance with such intent, provided that the Corporation shall not be required to assume any increased economic burden in connection therewith. Although the Corporation intends to administer this Agreement so that it will comply with the requirements of Section 409A, the Corporation does not represent or warrant that this Agreement will comply with Section 409A or any other provision of federal, state, local or foreign law, and the Corporation shall have no obligation to indemnify the Executive from the obligation to pay any taxes pursuant to Section 409A or otherwise or to make any "gross up" payments in respect thereof. Notwithstanding any provision of this Agreement to the contrary, any compensation or benefit payable hereunder that constitutes a deferral of compensation under Section 409A shall be subject to the following: (a) The parties agree that if any compensation or benefit payable hereunder may be subject to the requirements of Section 409A, the Corporation may adopt such amendments to this Agreement or take any other actions which are intended, with respect to such compensation or benefit, to either (a) comply with the applicable requirements of Section 409A or (b) satisfy an applicable exception thereto. (b) If the Executive is deemed at the time of his separation from service to be a "specified employee" for purposes of Code Section 409A(a)(2)(B)(i), to the extent delayed commencement of any portion of the compensation or benefits to which the Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) (any such delayed commencement, a "Payment Delay"), such compensation or benefits shall be provided to the Executive on the earlier to occur of (1) the date that is six months and one day from the date of the Executive's "separation from service" with the Corporation or (2) the Executive's death. Upon the earlier of such dates, all payments and benefits deferred pursuant to the Payment Delay shall be paid in a lump sum to the Executive, and any remaining compensation and benefits due under the Agreement shall be paid or provided as otherwise set forth herein. The determination of whether the Executive is a "specified employee" within the meaning for purposes of Code Section 409A(a)(2)(B)(i) as of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account time of the Executive's his separation from service would shall be considered deferred compensation otherwise subject to made by the 20 percent additional tax imposed pursuant to Section 409A(a) of Corporation in accordance with the Code as a result of the application terms of Section 409A(a)(2)(B)(i) 409A. 17 (c) Each separately identified amount and each installment payment, to which the Executive is entitled to payment shall be deemed to be a separate payment for purposes of Section 409A. (d) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A, (i) the Code, such right to payment or reimbursement or in-kind benefits shall not be payable and such benefit subject to liquidation or exchange for any other benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year of the Executive shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated by any lifetime and other annual limits provided until under the date that is the earlier of (A) six months Corporation's health plans and one day after the Executive's separation from service, or (B) the Executive's death. If any (iii) 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 payments 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 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 Executive's taxable year following the taxable year in which the expense was incurred. (e) The amount payment of in-kind benefits provided any compensation 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 benefit that 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 requirements of Section 409A of the Code, and may not be accelerated except 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 permitted by 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. 409A.
View More
Found in
COMPUTER TASK GROUP INC contract
Section 409a. (a) Anything General. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and incorporate the terms and 11 conditions required by, Section 409A. Notwithstanding any provision of this Agreement to the contrary notwithstanding, contrary, in the event that the Company determines that any amounts payable hereunder will be immediately taxable to the Executive under Section 409A, the Company reserves the right to (without any... obligation to do so or to indemnify the Executive for failure to do so) (i) adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect) that it determines to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement and to avoid less favorable accounting or tax consequences for the Company and/or (ii) take such other actions it determines to be necessary or appropriate to exempt the amounts payable hereunder from Section 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. Notwithstanding anything herein to the contrary, no provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section 409A from the Executive or any other individual to the Company or any of its Affiliates, employees or agents. (b) Separation from Service under Section 409A; Section 409A Compliance. Notwithstanding anything herein to the contrary: (i) no termination or other similar payments and benefits hereunder shall be payable unless the Executive's termination of employment constitutes a "separation from service" within the meaning of Section 1.409A-1(h) of the Department of Treasury Regulations; (ii) if the Executive is deemed at the time of the Executive's separation from service within the meaning to be a "specified employee" for purposes of Section 409A 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of any termination or other similar payments and benefits to which the Executive may be entitled hereunder (after taking into account all exclusions applicable to such payments or benefits under Section 409A) is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of such payments and benefits shall not be provided to the Executive prior to the earlier of (x) the expiration of the six (6)-month period measured from the date of the Executive's "separation from service" with the Company determines (as such term is defined in the Department of Treasury Regulations issued under Section 409A) or (y) the date of the Executive's death; provided that upon the earlier of such dates, all payments and benefits deferred pursuant to this Section 9(b)(ii) shall be paid in a lump sum to the Executive, and any remaining payments and benefits due hereunder shall be provided as otherwise specified herein; (iii) the determination of whether the Executive is a "specified employee" within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then to Code as of the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account time of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable made by the Company in accordance with their original schedule. (b) All in-kind benefits provided the terms of Section 409A (including, without limitation, Section 1.409A-1(i) of the Department of Treasury Regulations and expenses any successor provision thereto); (iv) to the extent that any Installment Payments under this Agreement are deemed to constitute "nonqualified deferred compensation" within the meaning of Section 409A, for purposes of Section 409A (including, without limitation, for purposes of Section 1.409A-2(b)(2)(iii) of the Department of Treasury Regulations), each such payment that the Executive may be eligible for reimbursement to receive under this Agreement shall be treated as a separate and distinct payment; (v) to the extent that any reimbursements or corresponding in-kind benefits provided by the Company or incurred by to the Executive during the time periods set forth in under this Agreement. All Agreement are deemed to constitute "deferred compensation" under Section 409A, such reimbursements or benefits shall be paid as soon as administratively practicable, provided reasonably promptly, but in no event shall any reimbursement be paid after the last day later than December 31 of the taxable year following the taxable year in which the expense was incurred. The incurred, and in any event in accordance with Section 1.409A-3(i)(1)(iv) of the Department of 12 Treasury Regulations; and (vi) the amount of in-kind benefits provided any such payments or reimbursable expenses incurred expense reimbursements in one taxable calendar year shall not affect the expenses or in-kind benefits to be provided or the expenses eligible for payment or reimbursement in any other taxable year (except calendar year, other than an arrangement providing for any lifetime or other aggregate limitation applicable the reimbursement of medical expenses referred to medical expenses). Such in Section 105(b) of the Code, and the Executive's right to such payments or reimbursement or in-kind benefits is of any such expenses shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. benefit.
View More
Section 409a. (a) Anything General. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and incorporate the terms and conditions required by, Section 409A. Notwithstanding any provision of this Agreement to the contrary notwithstanding, contrary, in the event that the Company determines that any amounts payable hereunder will be immediately taxable to the Executive under Section 409A, the Company reserves the right to (without any ob...ligation to do so or to indemnify the Executive for failure to do so) (i) adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect) that it determines to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement and to avoid less favorable accounting or tax consequences for the Company and/or (ii) take such other actions it determines to be necessary or appropriate to exempt the amounts payable hereunder from Section 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. Notwithstanding anything herein to the contrary, no provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section 409A from the Executive or any other individual to the Company or any of its affiliates, employees or agents. (b) Separation from Service under Section 409A. Notwithstanding anything herein to the contrary: (i) no termination or other similar payments and benefits hereunder shall be payable unless the Executive's termination of employment constitutes a "separation from service" within the meaning of Section 1.409A-1(h) of the Department of Treasury Regulations; (ii) if the Executive is deemed at the time of the Executive's separation from service within the meaning to be a "specified employee" for purposes of Section 409A 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of any termination or other similar payments and benefits to which the Executive may be entitled hereunder (after taking into account all exclusions applicable to such payments or benefits under Section 409A) is required in order to avoid a 10 prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of such payments and benefits shall not be provided to the Executive prior to the earlier of (x) the expiration of the six (6) month period measured from the date of the Executive's "separation from service" with the Company determines (as such term is defined in the Department of Treasury Regulations issued under Section 409A) or (y) the date of the Executive's death; provided that upon the earlier of such dates, all payments and benefits deferred pursuant to this Section 8(b)(ii) shall be paid in a lump sum to the Executive, and any remaining payments and benefits due hereunder shall be provided as otherwise specified herein; (iii) the determination of whether the Executive is a "specified employee" within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then to Code as of the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account time of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable made by the Company in accordance with their original schedule. (b) All in-kind benefits provided the terms of Section 409A (including, without limitation, Section 1.409A-l(i) of the Department of Treasury Regulations and expenses any successor provision thereto); (iv) to the extent that any installment payments under this Agreement are deemed to constitute "nonqualified deferred compensation" within the meaning of Section 409A, for purposes of Section 409A (including, without limitation, for purposes of Section 1.409A-2(b)(2)(iii) of the Department of Treasury Regulations), each such payment that the Executive may be eligible for reimbursement to receive under this Agreement shall be treated as a separate and distinct payment; (v) to the extent that any reimbursements or corresponding in-kind benefits provided by the Company or incurred by to the Executive during the time periods set forth in under this Agreement. All Agreement are deemed to constitute "deferred compensation" under Section 409A, such reimbursements or benefits shall be paid as soon as administratively practicable, provided reasonably promptly, but in no event shall any reimbursement be paid after the last day later than December 31 of the taxable year following the taxable year in which the expense was incurred. The incurred, and in any event in accordance with Section 1.409A-3(i)(1)(iv) of the Department of Treasury Regulations; and (vi) the amount of in-kind benefits provided any such payments or reimbursable expenses incurred expense reimbursements in one taxable calendar year shall not affect the expenses or in-kind benefits to be provided or the expenses eligible for payment or reimbursement in any other taxable year (except calendar year, other than an arrangement providing for any lifetime or other aggregate limitation applicable the reimbursement of medical expenses referred to medical expenses). Such in Section 105(b) of the Code, and the Executive's right to such payments or reimbursement or in-kind benefits is of any such expenses shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. benefit.
View More
Section 409a. (a) Anything in Executive and the Employer intend for all payments under this Agreement to be either outside the contrary notwithstanding, if at the time scope of Section 409A of the Executive's separation Code or to comply with its requirements as to timing of payments. Accordingly, to the extent applicable, this Agreement at all times is intended to be operated so as to be exempt from service within or in accordance with the meaning requirements of Section 409A of the Code, as amended, and the... regulations and rulings thereunder, including any applicable transition rules. The Employer shall have authority to take action, or refrain from taking any action, with respect to the payments and benefits under this Agreement that is reasonably necessary to be exempt from or comply with Section 409A. Notwithstanding the foregoing, however, in no event will the Employer be liable to Executive if this Agreement or any compensation payable hereunder fails to be exempt from or comply with Section 409A of the Code. Any payments that qualify for the "short-term deferral" exception or another exception under Section 409A of the Code shall be paid under the applicable exception (with the earliest amounts payable being deemed subject to the exception to the extent available). For purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Agreement shall be treated as a separate payment of compensation for purposes of applying the Section 409A of the Code. Notwithstanding anything in this Agreement to the contrary, if any amounts or benefits payable under this Agreement in the event of Executive's termination of employment constitute "nonqualified deferred compensation" within the meaning of Code Section 409A, payment of such amounts and benefits shall commence when Executive incurs a "separation from service" within the meaning of Treasury Regulation 1.409A-1(h), without regard to any of the optional provisions thereunder, from the Company determines or the Bank and any entity that would be considered a single employer with the Company or the Bank under Code Section 414(b) or 414(c) as modified by the rules under Section 409A of the Code (a "Separation from Service"). Such payments or benefits shall be provided in accordance with the timing provisions of this Agreement by substituting the Agreement's references to "termination of employment" or "termination" with Separation from Service. In addition, if at the time of Executive's Separation from Service Executive is a "specified employee" within the meaning of Code Section 409A(a)(2)(B)(i) 409A(a)(2)(B)(i), any amount or benefits that the constitutes "nonqualified deferred compensation" within the meaning of Code Section 409A that becomes payable to Executive on account of Executive's Separation from Service will not be paid until after the earlier of (i) the first business day of the Code, then seventh month following Executive's Separation from Service, or (ii) the date of Executive's death (the "409A Suspension Period") to the extent required to comply with Section 409A of the Code. After the end of the 409A Suspension Period, Executive shall be paid a cash lump sum payment equal to any payments (including interest on any such payments, at an interest rate of not less than the prime interest rate, as published in the Wall Street Journal, over the period such payment or benefit is restricted from being paid to Executive) and benefits 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 Employer would otherwise have been paid during the six-month period required to provide under this Agreement but for the application of this provision, and the balance imposition of the installments 409A Suspension Period. Thereafter, Executive shall be payable receive any remaining payments and benefits due under this Agreement in accordance with their original schedule. (b) All the terms of Section 6(d) or Section 7(a), as applicable (as if there had not been any 409A Suspension Period beforehand). To the extent not otherwise specified in this Agreement, all (A) reimbursements and (B) in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be made or provided by in accordance with the Company or requirements of Section 409A of the Code, including, where applicable, the requirement that (1) any reimbursement is for expenses incurred by the Executive during the Executive's lifetime (or during a shorter period of time periods set forth specified in this Agreement. All reimbursements shall Agreement); (2) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be paid as soon as administratively practicable, but provided, in any other calendar year; (3) the reimbursement of an eligible expense will be made no event shall any reimbursement be paid after later than the last day of the taxable calendar year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred; and (4) the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind in kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
View More
Section 409a. (a) Anything in The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively "Code Section 409A") or an exemption therefrom and, accordingly, to the contrary notwithstanding, if at maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the time Executive notifies the Company (with specificity as to the reason therefor) that the Execut...ive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with the Executive, reform such provision to attempt to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company of the Executive's separation applicable provision without violating the provisions of Code Section 409A. (b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Code Section 409A and, for purposes of the Code, the Company determines that any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service." 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 at the date that which is the earlier of (A) 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 (B) 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 24(b) (whether they would have 13 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 normal payment dates specified for them herein. (c) To the extent that reimbursements or incurred by the Executive during the time periods set forth in other in-kind benefits under this Agreement. All Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) all expenses or other reimbursements hereunder 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 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, (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 for another benefit. (c) To benefit, and (C) 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. (d) For purposes of Code Section 409A, the Executive's right to receive any installment payments pursuant to this Agreement constitutes "non-qualified 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, (i) the actual date of payment within the specified period shall be within the sole discretion of the Company and, (ii) if such payment qualifies as non-qualified deferred compensation" compensation under Section 409A and it can be paid in one 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 two calendar years, it shall be payable only upon paid in the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that second calendar year. (e) 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.
View More
Found in
LSB Industries, Inc. contract
