This page contains Section 409a clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Section 409a. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp
...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Variations of a "Section 409a" Clause from Business Contracts
Section 409a.
(a) Anything in 17.1 Distributions. Subject to this
Agreement Section 17.1, any payments or benefits under Sections 5 and 6 shall begin only upon the date of a "separation from service" as defined below which occurs on or after the date of termination under Section 5.1 or a Change of Control Termination under Section 6.l(c). The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to the
contrary notwithstanding, if at the time Employee un...der Sections 5 and 6: (a) It is intended that each installment of the Executive's separation from service within the meaning payments and benefits provided under sections 5 and 6 shall be treated as a separate "payment" for purposes of Section 409A of the Code, U.S. Internal Revenue Code of 1986, as amended, and the guidance issued thereunder ("Section 409A"). Neither the Company determines that nor the Executive Employee shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A; (b) If, as of the date of the "separation from service" of the Employee from the Company (as defined below), the Employee is not a "specified employee" (within the meaning of Section 409A), then each installment of the payments and benefits shall be made on the dates and terms set forth in sections 5 and 6; and (c) If, as of the date of the "separation from service" of the Employee from the Company, the Employee is a "specified employee" (within the meaning of Section 409A), then: (i) Each installment of the payments and benefits due under Sections 5 and 6 that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the Short-Term Deferral Period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i) l.409A-l(b)(4) to the maximum extent permissible under Section 409A and shall be paid at the time and in the manner set forth in the Agreement; and (ii) Each installment of the Code, then to payments and benefits due under Sections 5 and 6 that is not described in Section 17.l(c)(i) and that would, absent this subsection, be paid within the extent any payment or benefit that six-month period following the Executive becomes entitled to under this Agreement or otherwise on account "separation from service" of the Executive's separation Employee 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 Company shall not be payable and such benefit shall not be provided paid until the date that is the earlier of (A) six months and one day after the Executive's such separation from service, or (B) service (or, if earlier, the Executive's death. If Employee's death), with any such installments that are required to be 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 being accumulated during the six-month period but and paid in a lump sum on the date that is six months and one day following the Employee's separation from\ service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments and benefits if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of this provision, and Treasury Regulation I .409A-l(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement exception under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall Treasury Regulation Section l.409A-I (b)(9)(iii) must be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after later than the last day of the Employee's second taxable year following the Employee's 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 separation from service." service occurs. 17.2 The determination of whether and when a separation from service has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section l.409A-l(h). 17.3 All reimbursements and in-kind benefits provided under the Agreement shall be made or provided in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with requirements of Section 409A of the Code. To to the extent that any provision of this Agreement is ambiguous as such reimbursements or in-kind benefits are subject 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) 409A. 17.4 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. section.
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Section 409a.
(a) Anything in This Agreement is intended to comply with, or otherwise be exempt from, Section 409A. The Company shall undertake to administer, interpret and construe this
Agreement Agreement, to the
contrary notwithstanding, if at extent reasonably practicable, in a manner that does not result in the
time imposition on Executive of
the Executive's separation from service within the meaning of any additional tax, penalty or interest under Section
409A of the Code, 409A. If the Company determine
...s that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, 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 good faith that any provision of this Agreement is ambiguous as would cause Executive to its compliance with incur an additional tax, penalty or interest under Section 409A 409A, the Company and Executive shall use reasonable efforts to reform such provision, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the Code, applicable provision without violating the provision provisions of Section 409A. If a payment obligation under this Agreement arises on account of Executive's separation from service while Executive is a "specified employee" (as defined under Section 409A), then any payment that constitutes "deferred compensation" (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be read in such a manner so that all payments hereunder comply with Section 409A paid within fifteen (15) days after the end of the Code. Each payment pursuant to six (6) month period beginning on the date of such separation from service or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of Executive's estate following Executive's death. Notwithstanding the foregoing, nothing in this Agreement or the Restrictive Covenants Agreement otherwise is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree to, nor does it, guarantee 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 under this Agreement will not be subject to any additional tax or other adverse tax consequences under Section 409A or any similar state or local tax law. For purposes of Section 409A, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments. 8 10. Employee Protection. Nothing in this Agreement or otherwise limits Executive's ability to communicate directly with and provide information, including documents, not otherwise protected from disclosure by any applicable law or privilege to the Securities and Exchange Commission (the "SEC"), any other federal, state or local governmental agency or commission ("Government Agency") or self-regulatory organization regarding possible legal violations, without additional cost disclosure to either party. (e) the Company. The Company makes no representation may not retaliate against Executive for any of these activities, and nothing in this Agreement or warranty and shall have no liability otherwise requires Executive to waive any monetary award or other payment that Executive might become entitled to from the Executive SEC 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, Government Agency or the conditions of, such Section. self-regulatory organization.
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Section 409a.
(a) Anything in This Agreement is intended to comply with, or otherwise be exempt from, Section 409A. The Company shall undertake to administer, interpret and construe this
Agreement Agreement, to the
contrary notwithstanding, if at extent reasonably practicable, in a manner that does not result in the
time imposition on Executive of
the Executive's separation from service within the meaning of any additional tax, penalty or interest under Section
409A of the Code, 409A. If the Company determine
...s that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, 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 good faith that any provision of this Agreement is ambiguous as would cause Executive to its compliance with incur an additional tax, penalty or interest under Section 409A 409A, the Company and Executive shall use reasonable efforts to reform such provision, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the Code, applicable provision without violating the provision provisions of Section 409A. If a payment obligation under this Agreement arises on account of Executive's separation from service while Executive is a "specified employee" (as defined under Section 409A), then any payment that constitutes "deferred compensation" (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be read in such a manner so that all payments hereunder comply with Section 409A paid within fifteen (15) days after the end of the Code. Each payment pursuant to six (6) month period beginning on the date of such separation from service or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of Executive's estate following Executive's death. Notwithstanding the foregoing, nothing in this Agreement or the Restrictive Covenants Agreement otherwise is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree to, nor does it, guarantee 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 under this Agreement will not be subject to any additional tax or other adverse tax consequences under Section 409A or any similar state or local tax law. For purposes of Section 409A, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments. 9 10. Employee Protection. Nothing in this Agreement or otherwise limits Executive's ability to communicate directly with and provide information, including documents, not otherwise protected from disclosure by any applicable law or privilege to the Securities and Exchange Commission (the "SEC"), any other federal, state or local governmental agency or commission ("Government Agency") or self-regulatory organization regarding possible legal violations, without additional cost disclosure to either party. (e) the Company. The Company makes no representation may not retaliate against Executive for any of these activities, and nothing in this Agreement or warranty and shall have no liability otherwise requires Executive to waive any monetary award or other payment that Executive might become entitled to from the Executive SEC 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, Government Agency or the conditions of, such Section. self-regulatory organization.
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Section 409a.
(a) Anything in 16.1 Distributions. Subject to this
Agreement Section 16.1, any payments or benefits under Sections 5 and 6 shall begin only upon the date of a "separation from service" as defined below which occurs on or after the date of termination under Section 5.1 or a Change of Control Termination under Section 6.l (c). The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to the
contrary notwithstanding, if at the time Employee u...nder Sections 5 and 6: (a) It is intended that each installment of the Executive's separation from service within the meaning payments and benefits provided under sections 5 and 6 shall be treated as a separate "payment" for purposes of Section 409A of the Code, U.S. Internal Revenue Code of 1986, as amended, and the guidance issued thereunder ("Section 409A"). Neither the Company determines that nor the Executive Employee shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A; (b) If as of the date of the "separation from service" of the Employee from the Company (as defined below), the Employee is not a "specified employee" (within the meaning of Section 409A), then each installment of the payments and benefits shall be made on the dates and terms set forth in sections 5 and 6; and (c) If, as of the date of the "separation from service" of the Employee from the Company, the Employee is a "specified employee" employee,, (within the meaning of Section 409A), then: (i) Each installment of the payments and benefits due under Sections 5 and 6 that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the Short-Term Deferral Period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i) l.409A-l (b)(4) to the maximum extent permissible under Section 409A and shall be paid at the time and in the manner set forth in the Agreement; and (ii) Each installment of the Code, then to payment s and benefits due under Sections 5 and 6 that is not described in Section 16.l(c)(i) and that would, absent this subsection, be paid within the extent any payment or benefit that six-month period following the Executive becomes entitled to under this Agreement or otherwise on account "separation from service" of the Executive's separation Employee 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 Company shall not be payable and such benefit shall not be provided paid until the date that is the earlier of (A) six months and one day after the Executive's such separation from service, or (B) service (or, if earlier, the Executive's death. If Employee's death), with any such installments that are required to be 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 being accumulated during the six-month period but and paid in a lump sum on the date that is six months and one day following the Employee's separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments and benefits if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of this provision, and Treasury Regulation 1.409A-l (b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement exception under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall Treasury Regulation Section l .409A-l (b)(9)(iii) must be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after later than the last day of the Employee's second taxable year following the Employee's 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 separation from service." service occurs. 16.2 The determination of whether and when a separation from service has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section l.409A-l (h). 16.3 All reimbursements and in-kind benefits provided under the Agreement shall be made or provided in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with requirements of Section 409A of the Code. To to the extent that any provision of this Agreement is ambiguous as such reimbursements or in-kind benefits are subject 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) 409A. 16.4 The Company makes no representation or warranty and shall have no liability to the Executive Employee Exhibit 10.3 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. section.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, if at herein, the
time following provisions apply to the extent severance benefits provided herein are subject to Section 409A of
Code and the
Executive's separation regulations and other guidance thereunder and any state law of similar effect (collectively "Section 409A"). Severance benefits payable upon a termination of employment shall not commence until Executive has a "separation from
service within ser...vice" for purposes of Section 409A. Each installment of severance benefits is a separate "payment" for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), 9 and the meaning severance benefits are intended to satisfy the exemptions from application of Section 409A of the Code, the Company determines that the provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and Executive is is, upon separation from service, a "specified employee" within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then 409A, then, solely to the extent any payment or benefit that necessary to avoid adverse personal tax consequences under Section 409A, the Executive becomes entitled to under this Agreement or otherwise on account timing of the Executive's separation from service would severance benefits shall 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 delayed until the date that is the earlier of (A) (i) six (6) months and one day after the Executive's separation from service, or (B) the (ii) Executive's death. If any such delayed cash Any payment is or benefit otherwise payable on an installment basis, or to be provided in the first payment shall include a catch-up payment covering amounts six (6) month period following separation from service that would otherwise have been is not so paid during the six-month period but for the application or provided by reason of this provision, and the balance of the installments Section 17 shall be payable accumulated and paid or provided in accordance with their original schedule. a single lump sum, as soon as practicable (and in all events within 15 days) after the date that is six (6) months after Executive's separation from service (or, if earlier, as soon as practicable, and in all events within 15 days, after the date of Executive's death) (b) All in-kind benefits provided and expenses eligible for reimbursement under It is intended that this Agreement shall comply with the requirements of Section 409A, and any ambiguity contained herein shall be provided by interpreted in such manner so as to avoid adverse personal tax consequences under Section 409A. Notwithstanding the foregoing, 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 obligated to indemnify 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 Executive for any lifetime taxes 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 interest 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 assessed 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 IRS pursuant to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. on payments made pursuant to this Agreement.
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Section 409a.
(a) Anything in this This Agreement
is intended to
the contrary notwithstanding, if at the time of the Executive's separation comply with an exemption from
service within the meaning of Section 409A of the
Code, the Company determines that the Executive is Code and shall be construed and interpreted in 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 otherwis...e 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 manner that is consistent with the earlier of (A) six months and one day after the Executive's separation from service, requirements for avoiding additional taxes 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" penalties under Section 409A of the Code, Code. Notwithstanding the foregoing, the Company makes no representations that the payments 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 provided under 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 in no event shall the Company be liable for 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 portion of any taxes, penalties, interest or other person if any provisions expenses that may be incurred by the Participant on account of this Agreement are determined to constitute deferred compensation subject to non-compliance with Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Code.
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Section 409a.
(a) Anything in this Agreement 9.1. Notwithstanding anything to the contrary
notwithstanding, in this Plan, no Severance Benefits to be paid or provided to a Participant, if
at the time any, under this Plan that, when considered together with any other severance payments or separation benefits, are considered deferred 9 compensation under Section 409A of the
Executive's separation Code, and the final regulations and any guidance promulgated thereunder ("Section 409A") (together, the "Deferred Pa...yments") will be paid or provided until the Participant has a "separation from service service" within the meaning of Section 409A. Similarly, no Severance Benefits payable to a Participant, if any, under this Plan that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until the Participant has a "separation from service" within the meaning of the Code, the Company determines Section 409A. 9.2. It is intended that the Executive Severance Benefits will be either exempt from Section 409A as a payment that would fall within the "short-term deferral period" as described in Section 9.4 below or as resulting from an involuntary separation from service as described in Section 9.5 below or will be compliant with Section 409A. In no event will a Participant have discretion to determine the taxable year of payment of any Deferred Payment. 9.3. Notwithstanding anything to the contrary in this Plan, if a Participant is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time 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 Participant's separation from service would be considered deferred compensation otherwise subject (other than due to death), then the 20 percent additional tax imposed pursuant to Section 409A(a) of Deferred Payments, if any, that are payable within the Code as a result of first 6 months following 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 Participant's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise will become payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during date 6 months and 1 day following the six-month period but for the application of this provision, and the balance date of the installments shall Participant's separation from service. All subsequent Deferred Payments, if any, will be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, in the event of the Participant's death following the Participant's separation from service, but before the 6 month anniversary of the separation from service, then any payments delayed in accordance with this Agreement shall paragraph will be provided by the Company or incurred by the Executive during the time periods set forth payable in this Agreement. All reimbursements shall be paid a lump sum as soon as administratively practicable, but in no event shall any reimbursement be paid practicable after the last day date 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 Participant's death and all 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 Deferred Payments will 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 payment schedule applicable 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 or benefit. Each payment pursuant to and benefit payable under this Agreement or the Restrictive Covenants Agreement Plan is intended to constitute a separate payment under Section 1.409A-2(b)(2) of the Treasury Regulations. 9.4. Any amount paid under this Plan that satisfies the requirements of the "short-term deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Payments for purposes of this Section 9. 9.5. Any amount paid under this Plan that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulation Regulations that does not exceed the Section 1.409A-2(b)(2). 409A Limit will not constitute Deferred Payments for purposes of this Section 9. 9.6. The parties agree foregoing provisions are intended to comply with or be exempt from the requirements of Section 409A so that this Agreement may none of the Severance Benefits will be amended, subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply or be exempt. Notwithstanding anything to the contrary in the Plan, including but not limited to Sections 11 and 14, the Company reserves the right to amend the Plan as reasonably requested by either party, it deems necessary or advisable, in its sole discretion and as may be necessary without the consent of the Participants, to fully comply with Section 409A of the Code and all related rules and regulations in order or 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 avoid income recognition under Section 409A prior to the Executive actual payment of Severance Benefits or imposition of any additional tax. In no 10 event will the Company reimburse a Participant for any taxes or other person if any provisions costs that may be imposed on the Participant as result of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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Section 409a.
(a) Anything in The payments and benefits under this Agreement
are intended to qualify for exemptions from the application of Section 409A of the Internal Revenue Code ("Section 409A"), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A to the extent necessary to avoid adverse taxation under Section 40...9A. Notwithstanding anything to the contrary notwithstanding, if at herein, to the time extent required to comply with Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the Executive's separation payment of amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Section 409A 409A. Your right to receive any installment payments will be treated as a right to receive a series 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 separate payments and, accordingly, each installment payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would shall at all times be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, 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. distinct payment.
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Section 409a.
(a) Anything This Agreement is intended to comply with or otherwise be exempt from Section 409A and its corresponding regulations, to the extent applicable, and shall be so construed. Notwithstanding anything in this Agreement to the
contrary notwithstanding, if at the time contrary, payments of
the Executive's separation from service within the meaning of "nonqualified deferred compensation" subject to Section 409A
of the Code, the Company determines that the Executive is may only be made under... this Agreement upon an event and in a "specified employee" within the meaning of manner permitted by Section 409A(a)(2)(B)(i) of the Code, then 409A, to the extent any payment or benefit that applicable. For purposes of Section 409A, all payments of "nonqualified deferred compensation" subject to Section 409A to be made upon the Executive becomes entitled to termination of Executive's employment under this Agreement or otherwise on account of the Executive's separation may only be made upon a "separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to service" under Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such 409A. Each payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement made under this Agreement shall be provided by treated as a separate payment and the Company or incurred by the Executive during the time periods set forth in right to a series of installment payments under this Agreement. All reimbursements shall Agreement is to be paid treated as soon as administratively practicable, but in a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment with respect to any amount that is "nonqualified deferred compensation" subject to Section 409A. All reimbursements provided under this Agreement that are "nonqualified deferred compensation" that is subject to Section 409A shall be made or provided in accordance with Section 409A, including, where applicable, the requirements that (a) any reimbursement is for expenses incurred during the Employment Period (or during such other time period specified in this Agreement), (b) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (c) the reimbursement of an eligible expense will be paid after made on or before 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 is incurred, and (d) 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 Nothing herein shall be construed as having modified the extent that time and form of payment of any payment amounts or benefit described in this Agreement constitutes "non-qualified payments of "nonqualified deferred compensation" under within the meaning Section 409A of the Code, and that were otherwise payable pursuant to the extent that such payment or benefit is payable upon terms of any agreement between Company and Executive in effect prior to 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 date 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. Agreement.
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Section 409a.
(a) Anything in this Agreement 10.1 Notwithstanding anything to the contrary
notwithstanding, in this Plan, no severance payments or benefits to be paid or provided to a Participant, if
at the time any, under this Plan that, when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A of the
Executive's separation Code, and the final regulations and any guidance promulgated thereunder ("Section 409A") (together, the "D...eferred Payments") will be paid or provided until the Participant has a "separation from service service" within the meaning of Section 409A. Similarly, no severance payable to a Participant, if any, under this Plan that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until the Participant has a "separation from service" within the meaning of Section 409A. 10.2 It is intended that none of the Code, severance payments or benefits under this Plan will constitute Deferred Payments but rather will be exempt from Section 409A as a payment that would fall within the Company determines that "short-term deferral period" as described in Section 10.3 below or resulting from an involuntary separation from service as described in Section 10.4 below. In no event will a Participant have discretion to determine the Executive taxable year of payment of any Deferred Payment. 10.3 Notwithstanding anything to the contrary in this Plan, if a Participant is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time 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 Participant's separation from service would be considered deferred compensation otherwise subject (other than due to death), then the 20 percent additional tax imposed pursuant to Section 409A(a) of Deferred Payments, if any, that are payable within the Code as a result of first 6 months following 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 Participant's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise will become payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during date 6 months 7 and 1 day following the six-month period but for the application of this provision, and the balance date of the installments shall Participant's separation from service. All subsequent Deferred Payments, if any, will be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, in the event of the Participant's death following the Participant's separation from service, but before the 6 month anniversary of the separation from service, then any payments delayed in accordance with this Agreement shall paragraph will be provided by the Company or incurred by the Executive during the time periods set forth payable in this Agreement. All reimbursements shall be paid a lump sum as soon as administratively practicable, but in no event shall any reimbursement be paid practicable after the last day date 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 Participant's death and all 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 Deferred Payments will 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 payment schedule applicable 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 or benefit. Each payment pursuant to and benefit payable under this Agreement or the Restrictive Covenants Agreement Plan is intended to constitute a separate payment under Section 1.409A-2(b)(2) of the Treasury Regulations. 10.4 Any amount paid under this Plan that satisfies the requirements of the "short-term deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Payments for purposes of Section 10 above. 10.5 Any amount paid under this Plan that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulation Regulations that does not exceed the Section 1.409A-2(b)(2). 409A Limit will not constitute Deferred Payments for purposes of Section 10 above. 10.6 The parties agree foregoing provisions are intended to comply with or be exempt from the requirements of Section 409A so that this Agreement may none of the payments and benefits to be amended, provided under the Plan will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply or be exempt. Notwithstanding anything to the contrary in the Plan, including but not limited to Sections 12 and 15, the Company reserves the right to amend the Plan as reasonably requested by either party, it deems necessary or advisable, in its sole discretion and as may be necessary without the consent of the Participants, to fully comply with Section 409A of the Code and all related rules and regulations in order or 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 avoid income recognition under Section 409A prior to the Executive actual payment of benefits under the Plan or imposition of any other person if additional tax. In no event will the Company reimburse a Participant for any provisions taxes that may be imposed on the Participant as result of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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