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 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 This Agreement is ambiguous as intended 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 Internal Revenue Code of 1986, as amended, and the regulations and guidance thereunder ("Section 409A") or an exemption thereunder and shall be construed and administered in accordance with Section 409A, including any delay in 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, required if Executive is a "specified employee" under Section 409A. Notwithstanding any other provision of this Agreement, payments provided hereunder may only be made upon an event and as may be necessary to fully comply in a manner that complies with Section 409A or an applicable 5 exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment, if any, provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a "separation from service" under Section 409A. Notwithstanding the Code and all related rules and regulations in order to preserve foregoing, the Bank makes no representations that the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes under this Agreement comply with Section 409A and in no representation or warranty and event shall have no liability to the Executive Bank be liable for all or any portion of any taxes, penalties, interest or other person if any provisions expenses that may be incurred by Executive 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. 409A.
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Section 409a.
(a) Anything in The Company intends that all payments and benefits provided under this
Agreement Policy or otherwise are exempt from, or comply with, the requirements of Section 409A of the Code and any guidance promulgated thereunder (collectively, "Section 409A") so that none of the payments or benefits will be subject to the
contrary notwithstanding, additional tax imposed under Section 409A, and any ambiguities herein will be interpreted in accordance with this intent. No payment or benefits... to be paid to an Eligible Employee, if any, under this Policy or otherwise, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the "Deferred Payments") will be paid or otherwise provided until such Eligible Employee has a "separation from service" within the meaning of Section 409A. If, at the time of the Executive's separation from service within Eligible Employee's termination of employment, the meaning of Section 409A of the Code, the Company determines that the Executive Eligible Employee is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A, then the payment of the Code, then Deferred Payments will be delayed to the extent any payment or benefit that necessary to avoid the Executive becomes entitled to under this Agreement or otherwise on account imposition of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to under Section 409A(a) of 409A, which generally means that the Code as a result of Eligible Employee will receive payment on 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 first payroll date that occurs on or after the date that is the earlier of (A) six 6 months and one 1 day after following his or her termination of employment. The Company reserves the Executive's separation from service, right to amend the Policy as it deems necessary or (B) advisable, in its sole discretion and without the Executive's death. If consent of any such delayed cash payment is otherwise payable on an installment basis, Eligible Employee or any other individual, to comply with any provision required to avoid 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 imposition 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" additional tax imposed under Section 409A of the Code, and or to otherwise avoid income recognition under Section 409A prior to the extent that such actual payment of any benefits or imposition of any additional tax. Each payment, installment, and benefit payable under this Policy 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 U.S. Treasury Regulation Section 1.409A-2(b)(2). The parties agree In no event will the Company reimburse any Eligible Employee for any taxes that this Agreement may be amended, imposed on him, including as reasonably requested by either party, and as may be necessary to fully comply with a result of Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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Section 409a.
(a) Anything in this Agreement 10.1. Notwithstanding anything to the contrary
notwithstanding, in the Plan, no Severance Benefits to be paid or provided to a Participant, if
at any, under the
time 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 "Deferred Payments"...) 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 the 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. 10.2. 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 10.4 below or as resulting from an involuntary separation from service as described in Section 10.5 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. 10.3. Notwithstanding anything to the contrary in the 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 six (6) months following the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be Participant's separation from service, will become payable and such benefit shall not be provided until on the date that is the earlier of (A) six (6) months and one (1) day after following the Executive's date of the Participant'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 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 six (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 this Agreement or and benefit payable under 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 the 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 10. 10 10.5. Any amount paid under the 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 10. 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 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 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 Severance Benefits or imposition of any additional tax. In no 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 this Agreement (a)Notwithstanding anything to the contrary
notwithstanding, if at herein, the
time of following provisions apply to the
Executive's separation from service within the meaning of extent severance benefits provided herein are subject to Section 409A of the
Code, Internal Revenue Code (the "Code") and the
Company determines that regulations and other guidance thereunder and any state law of similar effect (collectively "Section 409A"). Severance benefits shall not co...mmence until the Executive has a "separation from service" (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a "separation from service"). Each installment of severance benefits is a separate "payment" for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A 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 the Executive 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 payments 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) (ii) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, The parties acknowledge that 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 exemptions from application of Section 409A to severance benefits are fact specific, and any later amendment of this provision, and Agreement to alter the balance timing, amount or conditions that will trigger payment of severance benefits may preclude the installments shall be payable in accordance with their original schedule. (b) All in-kind ability of severance benefits provided and expenses eligible for reimbursement under this Agreement to qualify for an exemption. (b)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 Internal Revenue Service pursuant to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. to payments made pursuant to this Agreement.
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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 This Agreement is ambiguous as intended 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 Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code to the extent it may be applicable. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under 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 Grantee 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 is intended to comply with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations relating thereto or an exception to Section 409A of the Code. For purposes of compliance with Section 409A of the Code, each payment of compensation under this Agreement
to shall be treated as a separate payment of compensation, and in no event may the
contrary notwithstanding, if at Executive, directly or indirectly,... designate the time calendar year of any payment under this Agreement. All reimbursements provided under this Agreement shall be provided in accordance with the Executive's separation from service within the meaning requirements of Section 409A of the Code, including, where applicable, the Company determines requirement that (a) the Executive is a "specified employee" within the meaning amount 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 calendar year shall 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 shall 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 4 following the calendar year in which the expense is incurred, and (c) the right to any reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a.
(a) Anything This letter agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and administered in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder ("Section 409A"). Notwithstanding any other term of this letter agreement, payments provided under this letter agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under thi...s letter agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. Notwithstanding any other term in this Agreement to the contrary notwithstanding, if letter agreement, if, at the time of your separation of employment, you are a "specified employee," as defined in Section 409A, to the Executive's separation from service within the meaning extent delayed commencement of Section 409A any portion of the Code, the Company determines that the Executive payments or benefits to which you are entitled under this letter agreement is required in order to avoid a "specified employee" within the meaning of prohibited distribution under 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 portion 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 your benefits shall not be provided until the date that is to you before the earlier of (A) (a) six (6) months and one day after your separation, or (b) the date of your death. All payments deferred pursuant to this Section 8 shall be paid in a lump sum to you on the date which is six months and one day after your separation or the Executive's separation from service, or (B) the Executive's death. If date of your death, as applicable, and 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 remaining payments due 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 letter agreement shall be paid as soon as administratively practicable, but required by this letter agreement. Notwithstanding any other term in this letter agreement: (i) no event amount that constitutes "deferred compensation" under Section 409A shall be payable pursuant to Section 4(c) above unless the termination of your employment constitutes a "separation from service" within the meaning of Treasure Regulations Section l.409A-l(h). Any installment payment paid pursuant to this letter agreement shall constitute a separate and distinct payment for purposes of Section 409A. Additionally, to the extent that any reimbursement of expenses or in-kind benefits constitutes "deferred compensation" under Section 409A, such reimbursement or benefit shall be paid after the last day provided no later than December 31st of the taxable year following the taxable year in which the expense was incurred. The 6 amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided 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 year. Notwithstanding the extent foregoing, the Company makes no representations 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 under this letter agreement comply with Section 409A, and in no event shall the Company makes no representation or warranty and shall have no liability to the Executive be liable for all or any portion of any taxes, penalties, interest, or other person if any provisions expenses that may be incurred by you 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. 409A.
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Section 409a.
(a) Anything If the termination giving rise to the payments described in
Section 6 is not a "Separation from Service" within the meaning of Treas. Reg. § 1.409A-1(h)(1) (or any successor provision), then the amounts otherwise payable pursuant to that section will instead be deferred without interest and will not be paid until Executive experiences a Separation from Service. In addition, to the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is... necessary to avoid the application of an additional tax under Section 409A of the Internal Revenue Code to any payments due to Executive upon or following his Separation from Service, then notwithstanding any other provision of this Agreement (or any otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise due within six months following Executive's Separation from Service (taking into account the preceding sentence of this paragraph) will be deferred without interest and paid to Executive in a lump sum immediately following that six month period. This paragraph should not be construed to prevent the contrary notwithstanding, if at the time application of Treas. Reg. §§ 1.409A-1(b)(4) or 1(b)(9)(iii)(or any successor provisions) to amounts payable to Executive. For purposes of the Executive's separation from service application of Treas. Reg. § 1.409A-1(b)(4) (or any successor provision) to amounts payable hereunder, each payment in a series of payments will be deemed a separate payment. With respect to any expense reimbursement or in-kind benefit provided to Executive that constitutes a "deferral of compensation" within the meaning of Section 409A of the Internal Revenue Code, (a) the Company determines that expenses must be incurred during Executive's lifetime, (b) the Executive is a "specified employee" within the meaning amount 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 or in-kind benefits provided by the Company or incurred by the to Executive during any calendar year will not affect the time periods set forth amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in this Agreement. All any other calendar year, (c) reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after made on or before the last day of the taxable calendar year following the taxable calendar year in which the applicable 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 may not subject to liquidation be liquidated or exchange exchanged for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. benefit.
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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 21.1 This 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 the regulations issued thereunder ("Section 409A") or an exemption thereunder and regulations shall be construed and interpreted in order a manner consistent with the requirements for avoiding additional taxes or penalties under Section 409A. 21.2 If and to preserve the extent any portion of any payment provided to the Participant under this Agreement in connection with the Participant's separation from service (as defined in Section 409A) is determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A and the Participant is a "specified employee" as defined in Section 409A(a)(2)(B)(i), as determined by the Company in accordance with the procedures separately adopted by the Company for this purpose, by which determination the Participant, as a condition to accepting benefits under this Agreement and the Plan, agrees that he or she is bound, such portion of the shares of the Company's common stock to be delivered on a vesting date or the cash equivalent shall not be delivered or paid before the earlier of (i) the day that is six months plus one day after the date of separation from service (as determined under Section 409A) or (ii) the tenth 10th day after the date of the Participant's death (as applicable, the "New Payment Date"). The cash equivalent of the shares that otherwise would have been delivered to the Participant during the period between the date of separation from service and the New Payment Date or the shares themselves shall be paid or delivered to the Participant on such New Payment Date, and any remaining shares or the cash equivalent will be delivered on their original schedule. Neither the Company nor the Participant shall have the right to accelerate or defer the delivery of any such shares or cash payment except to the extent specifically permitted or required by Section 409A. This Agreement is intended to comply with the provisions of Section 409A and this Agreement and the Plan shall, to the extent practicable, be construed in accordance therewith. Terms defined in this Agreement and the Plan shall have the meanings given such terms under Section 409A if and to the extent required to comply with Section 409A. 21.3 Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided hereunder without additional cost to either party. (e) The under this Agreement comply with Section 409A and in no event shall the Company makes no representation or warranty and shall have no liability to the Executive be liable for all 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 409A. 5 22. No Impact on Other Benefits. The value of the Code but do Participant's Performance Units is not satisfy an exemption from, part of his or the conditions of, such Section. her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, in this agreement, no severance payments or benefits payable to you, if
at any, pursuant to this agreement or another agreement with the
time of Company that, when considered together with any other severance payments or separation benefits, is considered deferred compensation under Section 409A (together, the
Executive's separation "Deferred Payments") will be payable until you have a "separation from
servi...ce service" within the meaning of Section 409A of the Code, 409A. Similarly, no severance payable to you, if any, pursuant to this agreement or another agreement with the Company determines that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-l(b)(9) will be payable until you have a "separation from service" within the Executive is meaning of Section 409A. (b) Further, if you are 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 your separation from service would be considered deferred compensation (other than due to death), any Deferred Payments that otherwise subject to are payable within the 20 percent additional tax imposed pursuant to Section 409A(a) of first six (6) months following your separation from service will become payable on 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 first payroll date that occurs on or after the date that is the earlier of (A) six (6) months and one (1) day after following the Executive's date of your 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 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 your death following your separation from service but prior to the six ( 6) month anniversary of your separation from service (or any later delay date), 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 your 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 agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b )(2) of the Treasury Regulations. Jonathan W. Faddis August 14, 2012 (c) Any severance payment that satisfies the requirements of the "short-term deferral" rule set forth in Section 1.409A-l(b)(4) of the Treasury Regulations shall not constitute Deferred Payments for purposes of this agreement. Any severance payment that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409Al( b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit shall not constitute Deferred Payments for purposes of this agreement. For purposes of this subsection (c), "Section 409A Limit" will mean the lesser of two (2) times: (i) your annualized compensation based upon the annual rate of pay paid to you during the Company's taxable year preceding the Company's taxable year of your separation from service as determined under Treasury Regulation Section 1.409A-2(b)(2). The parties agree 1.409A-l(b)(9)(iii)(A)(l) and any Internal Revenue Service guidance issued with respect thereto; or (ii) the maximum amount that this Agreement may be amended, as reasonably requested by either party, and as may be necessary taken into account under a qualified plan pursuant to fully Section 401(a)(17) of the Internal Revenue Code for the year in which your employment is terminated. (d) The foregoing provisions are intended to comply with the requirements of Section 409A of the Code and all related rules and regulations in order to preserve the so that no severance payments and benefits to be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability you will be subject to the Executive additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. You and the Company agree to work together in good faith to consider amendments to this agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any other person if any provisions of this Agreement are determined additional tax or income recognition prior to constitute deferred compensation subject actual payment to you under Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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