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 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 without under this Agreement will not be subject to any additional cost to either party. (e) The Company makes no representation tax or warranty and shall have no liability to the Executive other adverse tax consequences under Section 409A or any other person if similar state or local tax law. For purposes of Section 409A, any provisions series of installment payments under this Agreement are determined shall be treated as a right to constitute deferred compensation subject to Section 409A a series of the Code but do not satisfy an exemption from, or the conditions of, such Section. separate payments.
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Section 409a.
(a) Anything 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 Treasury Regulation ยง 1.409A-1(i), 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 paymentsor benefits to which you are entitled under this letter agreement is
req...uired 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 7 shallbe paid in a lump sum to you on the date which is six months and one day after your separationor 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 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 3(e) above unless the termination of your employment constitutes a "separation from service" within the meaning of Section 1.409A-1(h) of the Department of Treasury Regulations. Any installment 4 payment paid pursuant to this letter agreement shall constitute a separate and distinct paymentfor purposes of Section 409A. Additionally, to the extent that any reimbursement of expenses or in-kind benefits constitutes "deferred compensation" under Section 409A, such reimbursementor 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 amount of in-kind benefits provided or reimbursable expenses incurred reimbursed in one taxable year shall not affect the in-kind benefits to be provided or the expenses amount eligible for reimbursement in any other taxable year (except for subsequent year. The amount of any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is provided in one year shall not affect the amount of in-kind benefits provided in any other year. This letter shall be construed in a manner that complies with Section 409A of the Code and the United States Treasury Department's implementing regulations for Section 409A of the Code so that none of the payments and benefits provided under this agreement will 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" additional tax imposed 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 Code. All ambiguities in this agreement 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 interpreted 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 the Treasury Department's implementing 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 for Section 409A of the Code but do not satisfy an exemption from, Code. The Company and you shall cooperate, in good faith, to take all reasonable actions, including amending this letter agreement 8. Miscellaneous. This offer letter constitutes the entire agreement between you and the Company regarding the terms and conditions of your employment, and they supersede allprior negotiations, representations, or agreements between you and the conditions of, such Section. Company. The provisions of this agreement may only be modified by a document signed by you and the Company. This offer letter will be governed by the laws of the State of Washington.
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Section 409a.
(a) Anything in It is intended that this Agreement
to shall comply with the
contrary notwithstanding, if at the time provisions of Section 409A of the
Executive's separation from service within Code and the
meaning Treasury Regulations relating thereto, or an exemption to Section 409A of the Code. Any payments that qualify for the "short-term deferral" exception shall be paid under such exception. For purposes 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 each payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided treated as a separate payment for purposes of the exclusion for certain short-term deferral amounts. In no event may Widmer, directly or indirectly, designate the calendar year of any payment under this Agreement. Within the time period permitted by the Company applicable Treasury Regulations (or such later time as may be permitted under Section 409A of the Code or incurred by any Internal Revenue Service or Department of Treasury rules or other guidance issued thereunder), the Executive during Bank may, in consultation with Widmer, modify this Agreement in order to cause the time periods set forth provisions of this Agreement to comply with the requirements of Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement. All Agreement, all reimbursements provided under this Agreement shall be paid as soon as administratively practicable, but made or provided in no event shall accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (A) any reimbursement be paid after is for expenses incurred during Widmer's lifetime (or during a shorter period of time specified in this Agreement); (B) 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 eligible for reimbursement during a calendar year shall may not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable calendar year; (C) the reimbursement of an eligible expense will be made no later than the last day of the calendar year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such following the year in which the expense is incurred; and (D) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To The Bank acknowledges and agrees that a "separation from service" within the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under meaning of Section 409A will occur upon Widmer's retirement as 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. Effective Date.
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Section 409a. (a)
Anything in this Agreement To the extent a Participant would otherwise be entitled to any payment or benefit that under the Plan, or any plan or arrangement of the Company or its affiliates, constitutes "deferred compensation" subject to Section 409A and that if paid or provided during the six (6) months beginning on the date of termination of a Participant's employment would be subject to the
contrary notwithstanding, if at Section 409A additional tax because the
time Participant is a "spec...ified employee" (within the meaning of Section 409A and as determined by the Company), the payment or benefit will be paid or provided (or will commence being paid or provided, as applicable) to the Participant on the earlier of the Executive's separation from service six (6) month anniversary of the Participant's Date of -11- Termination or the Participant's death. In addition, any payment or benefit due upon a termination of the Participant's employment that represents a "deferral of compensation" within the meaning of Section 409A shall be paid or provided to the Participant only upon a "separation from service" as defined in Treasury Regulation Section 1.409A-1(h). Each severance payment made under the Plan shall be deemed to be separate payments, and amounts payable under Section 3 or Section 4 of the Code, Plan shall be deemed not to be a "deferral of compensation" subject to Section 409A to the Company determines that extent provided in the Executive is exceptions in Treasury Regulation Sections 1.409A-1(b)(4) ("short-term deferrals") and (b)(9) ("separation pay plans," including the exception under subparagraph (iii)) and other applicable provisions of Treasury Regulation Sections 1.409A-1 through A-6. (b) Any payment due upon a "specified employee" Change in Control will be paid only if such Change in Control constitutes a "change in ownership" or "change in effective control" within the meaning of Section 409A(a)(2)(B)(i) 409A, and in the event that such Change in Control does not constitute a "change in the ownership" or "change in the effective control" within the meaning of Section 409A, such award will vest upon the Code, then Change in Control and any payment will be delayed until the first compliant date under Section 409A. (c) Notwithstanding anything to the extent contrary in the Plan or elsewhere, any payment or benefit that under the Executive becomes entitled to under this Agreement Plan or otherwise on account of the Executive's separation that is exempt from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed Section 409A pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, final Treasury Regulation Sections 1.409A-1(b)(9)(v)(A) or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements (C) shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after or provided to the Participant only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the Participant's second taxable year following the Participant's taxable year in which the "separation from service" occurs; and provided, further, that such expenses are reimbursed no later than the last day of the Participant's third taxable year following the taxable year in which the Participant's "separation from service" occurs. Except as otherwise expressly provided herein, to the extent any expense was incurred. The reimbursement or the provision of any in-kind benefit under the Plan is determined to be subject to Section 409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefits provided or reimbursable expenses incurred benefit, in one taxable (1) calendar year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Participant incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To Notwithstanding anything to the extent contrary in the Plan or elsewhere, in the event that a Participant waives the provisions of another severance or change in control agreement or arrangement to participate in the Plan and such participation in the Plan is later determined to be a "substitution" -12- (within the meaning of Section 409A) for the benefits under such agreement or arrangement, then any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A the Plan that such Participant becomes entitled to receive during the remainder of the Code, and to the extent that waived term of such payment agreement or benefit is payable upon the Executive's termination of employment, then such payments or benefits arrangement 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 time and form 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, such agreement or the conditions of, such Section. arrangement.
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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 to Internal Revenue Code of 1986, as amended (Section 409A) or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of 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 Agreement, payments provided under this Agreement may only be amended, as reasonably requested by either party, made upon an event and as may be necessary to fully comply in a manner that complies with Section 409A or an applicable 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 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 Employer 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 Employer 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 Employee 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 This Agreement is intended to comply with Section 409A ("Section 409A") of the Internal Revenue Code of 1986, as amended (the "Code"), or an exemption thereunder and shall be construed and administered in
accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement
may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be exclu...ded from Section 409A either as separation pay due to the contrary notwithstanding, if at the time of the Executive's an involuntary separation from service within or as a short-term deferral shall be excluded from Section 409A to the meaning maximum extent possible. For purposes 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 409A, 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 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 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 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 makes 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 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 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 expenses that may be incurred by the Employee on account of non-compliance with Section 409A. 11 20. Notice. The Employee agrees to notify any provisions subsequent employer of the restrictive covenants section contained in this Agreement. In addition, the Employee authorizes the Employer Group to provide a copy of the restrictive covenants section of this Agreement are determined to constitute deferred compensation subject to Section 409A of third parties, including but not limited to, the Code but do not satisfy an exemption from, Employee's subsequent, anticipated or the conditions of, such Section. possible future employer.
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Section 409a.
(a) Anything in The Parties intend for the compensation provided under this Agreement to
comply with, or be exempt from, the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning provisions of Section 409A of the
Code, Internal Revenue Code of 1986, as amended (the "Code") (together with 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 regulations the...reunder, "Section 409A"). If any payment or benefit that hereunder constituting "nonqualified deferred compensation" subject to Section 409A would be subject to subsection (a)(2)(B)(i) of Section 409A (relating to payments made to "specified employees" of publicly-traded companies upon separation from service), any such payment or benefit to which Executive would otherwise be entitled during the Executive becomes entitled to under this Agreement or otherwise on account of the six (6)-month period following 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 will instead be provided until or paid without interest on the first business day following the expiration of such six (6)-month period, or if earlier, 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 Each 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. Notwithstanding anything to the Company contrary in this Agreement, any reimbursement that constitutes or could constitute nonqualified deferred compensation subject to Section 409A will be subject to the following additional requirements: (a) the expenses eligible for reimbursement will have been incurred by the Executive during the time periods set forth in term of this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after Agreement; (b) 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 eligible for reimbursement during any calendar year shall will not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year; (c) reimbursement will be made not later than December 31 of the calendar year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such following the calendar year in which the expense was incurred; and (d) the right to reimbursement or in-kind benefits is will not be subject to liquidation or exchange for another any other benefit. (c) To 4 | P a g e 7. No Offset; Clawback. (a) in no event shall any alternative source of income or other monies to Executive from outside of the extent that any payment Company, whether through other employment, consultancy, investments or benefit described in otherwise, be deemed to offset the payments owed to Executive hereunder; and (b) no cash compensation received by Executive under 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 clawback or recoupment by the Code but do not satisfy an exemption from, Company following its payment, nor shall the Options be subject to any clawback or recoupment by the conditions of, such Section. Company.
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Section 409a.
(a) Anything in It is intended that (1) each installment of the payments provided under this
Agreement letter is a separate "payment" for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and (2) that the payments satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v). Notwithstanding anything to the contrary
notwit...hstanding, in this letter, if the Company determines (i) that on the date your employment with the Company terminates or at such other times that the Company determines to be relevant, you are a "specified employee" (as such term is defined under Treasury Regulation 1.409A-1(i)) of the Company and (ii) that any payments to be provided to you pursuant to this letter are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code if provided at the time otherwise required under this letter, then such payments shall be delayed until the date that is six months after the date of your "separation from service" (as such term is defined under Treasury Regulation 1.409A-1(h)) with the Company, or, if earlier, the date of your death. Any payments Initial: (Company Rep) AC (Employee) 3 delayed pursuant to this Section shall be made in lump sum on the first day of the Executive's separation seventh month following your "separation from service service" (as such term is defined under Treasury Regulation 1.409A-1(h)), or, if earlier, the date of your death. In addition, to the extent that any reimbursement, fringe benefit or other, similar plan or arrangement in which you participate during the term of your employment under this letter or thereafter provides for a "deferral of compensation" within the meaning of Section 409A of the Code, (i) the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent 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 amount eligible for reimbursement or payment under this Agreement shall such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be provided by the Company reimbursed or incurred by the Executive during the paid), and (ii) subject to any shorter time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such plan or arrangement must be paid after made on or before the last day of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount Notwithstanding any other provision to the contrary, a termination of in-kind benefits provided or reimbursable expenses incurred in one taxable year employment shall not affect the in-kind benefits be deemed to be provided or the expenses eligible have occurred 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 purposes 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 letter providing for the payment of "deferred compensation" (as such term is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read defined 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 Treasury Regulations promulgated thereunder) upon or following a termination of employment unless such termination is also a "separation from service" from the Company makes no representation or warranty and shall have no liability to within the Executive or any other person if any provisions meaning of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, and Section 1.409A-1(h) of the Treasury Regulations and, for purposes of any such provision of this letter, references to a "separation," "termination," "termination of employment" or like terms shall mean "separation from service. Notwithstanding any other provision to the conditions of, contrary, in no event shall any payment under this letter that constitutes "deferred compensation" for purposes of Section 409A of the Code and the Treasury Regulations promulgated thereunder be subject to offset by any other amount unless otherwise permitted by Section 409A of the Code. For the avoidance of doubt, any payment due under this letter within a period following your termination of employment, death, Permanent Disability or other event shall be made on a date during such Section. period as determined by the Company in its sole discretion. This letter shall be interpreted in accordance with, and the Company and you will use their best efforts to achieve timely compliance with, Section 409A of the Code and the Treasury Regulations and other interpretive guidance promulgated thereunder, including without limitation any such regulations or other guidance that may be issued after the effective date of this letter.
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Section 409a.
(a) Anything in Neither this Agreement
nor the payments provided hereunder are intended to constitute "deferred compensation" subject to the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning requirements of Section 409A of the
Code, Internal Revenue Code of 1986 and 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 E...xecutive becomes entitled to under Treasury regulations and interpretive guidance issued thereunder (collectively, "Section 409A"), and 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 construed and administered in accordance with their original schedule. (b) All in-kind benefits such intent. For purposes of Section 409A, each payment provided and expenses eligible for reimbursement under this Agreement shall be provided by treated as a separate payment. Notwithstanding the foregoing, the Company makes no representations that this Agreement or incurred by the Executive during payments provided under this Agreement complies with or is exempt from the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but requirements of Section 409A and 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 Company Party be liable for all or any provisions portion of this Agreement are determined to constitute deferred compensation subject to any taxes, penalties, interest or other expenses that may be incurred by Employee on account of 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 payments under this Agreement
are intended to
be exempt from the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning requirements of Section 409A of the
Code, Internal Revenue Code of 1986, as amended, and the
Company determines Treasury regulations and other interpretive guidance thereunder (collectively, "Section 409A") under the short-term deferral and/or separation pay plan exceptions. The Parties agree that
the Executive... is this Agreement shall be administered in a "specified employee" within the meaning manner consistent with such intent. For purposes 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 409A, all payments under this Agreement shall be provided by considered separate payments. 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 makes 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 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 Agreement are exempt from the requirements of Section 409A and in no event shall the Company makes no representation or warranty and shall have no liability to the Executive or any other person if Company Party be liable for all or any provisions portion of this Agreement are determined to constitute deferred compensation subject to any taxes, penalties, interest or other expenses that may be incurred by Eck on account of 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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