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 9.1. General. Notwithstanding anything to the contrary
notwithstanding, in this Plan or any Participation Agreement, no Deferred Payments, if
at any, will be paid or provided until the
time of the Executive's separation Participant has a "separation from
service service" within the meaning of Section 409A
(a "Separation from Service"). Similarly, no severance benefits payable to a Participant under the Plan, if any, which otherwise would be exempt from Section 409A... pursuant to Treasury Regulations Section 1.409A-1(b)(9), will be payable until the Participant has a Separation from Service. 9.2. Exemption; Compliance. It is intended that none of the Code, severance benefits under the Company determines Plan will constitute Deferred Payments, but rather that all payments and benefits under this Plan will be exempt from Section 409A as payments that would fall within the Executive "short-term deferral period" or result from an involuntary separation from service (as defined in Section 409A), as described in Section 9.4. It also is intended that, to the extent any such severance benefits under the Plan otherwise are not excluded from coverage under Section 409A pursuant to the exceptions in the immediately preceding sentence, they are excluded from coverage under Section 409A pursuant to the "limited payment" exception under Treasury Regulations Section 1.409A-1(b)(9)(v)(D), but only to the extent permitted by such regulation. In no event will a Participant have discretion to determine the taxable year of payment of any Deferred Payment. 9.3. Required Delay. Notwithstanding any contrary Plan provision, if a Participant is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of his or her Separation from Service (other than due to death), then the Code, then to Deferred Payments, if any, that are payable within the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise first six (6) months following such Separation from Service, will become payable 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 (6) months and one (1) day after following the Executive's separation date of such 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. Any subsequent Deferred Payment, 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 such payment. Notwithstanding anything herein to the contrary, in the event of the Participant's death following his or her Separation from Service, but before the date six (6) months following such Separation from Service, then any payments delayed in accordance with this Agreement shall Section 9.3 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 Participant's death and 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 Deferred Payment 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 payment schedule applicable to such payment. Each payment, installment and benefit payable under this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement Plan is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2). 9.4. Certain Exemptions. Any amount paid under this Plan that (x) satisfies the requirements of the "short-term deferral" rule set forth in Treasury Regulations Section 1.409A-1(b)(4) or (y) qualifies as a payment made as a result of an involuntary separation from service pursuant to Treasury Regulations Section 1.409A-1(b)(9)(iii) that does not exceed the limit set forth in Treasury Regulations Section 1.409A-1(b)(9)(iii)(A) will not constitute a Deferred Payment for purposes of Treasury Regulation this Section 1.409A-2(b)(2). 9. 9.5. Interpretation; Other Requirements. The parties agree provisions of the Plan are intended to comply with or be exempt from the requirements of Section 409A so that this Agreement may none of the severance benefits to be amended, provided under the Plan will be subject to the additional tax imposed under Section 409A, and any ambiguities and ambiguous terms herein will be interpreted to so comply or be exempt. For purposes of the Plan, to the extent required to be exempt from or comply with Section 409A, any references to a Participant's Involuntary Termination or similar phrases relating to the termination of a Participant's employment will be references to such Participant's Separation from Service. Notwithstanding any contrary Plan provision, including but not limited to Section 15, the Company, by action of the Administrator, 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 any Participant or other person or entity, to fully comply with Section 409A or to avoid income recognition under Section 409A or to otherwise avoid the imposition of additional tax under Section 409A prior to the actual payment or provision of any severance benefits under the Plan. In no event will a Participant have any discretion to choose the Participant's taxable year in which any payments or benefits are provided under this Plan. In no event will the Company Group or any affiliate of the Code and all related rules and regulations in order Company Group have any responsibility, liability or obligation to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation reimburse, indemnify or warranty and shall have no liability to the Executive hold harmless Participant for any taxes, penalties or any interest that may be imposed, or other person if any provisions costs that may be incurred, as a 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 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) 7.1 To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of applicable, 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 Plan shall be payable only upon the Executive's "separation from service." The determination of whether interpreted 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 applied consistent and in accordance with Section 409A of the Code. To Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of the Plan to the contrary, to the extent that the Plan Administrator determines that any provision of this Agreement is ambiguous as to its compliance payments or benefits under the Plan may not be either compliant 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 exempt from Section 409A of the Code and all related rules Department of Treasury guidance, the Plan Administrator may in its sole discretion adopt such amendments to the Plan or take such other actions that the Plan Administrator determines are necessary or appropriate to (i) exempt the compensation and regulations in order to benefits payable under the Plan from Section 409A of the Code and/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that this Section 7 shall not create any obligation on the part of the Plan Administrator to adopt any such amendment or take any other action, nor shall the Company or any of its Affiliates have any liability for failing to do so. 7.2 Any right to a series of installment payments pursuant to this Plan and benefits provided hereunder without additional cost any Participation Notice is to either party. (e) The Company makes no representation be treated as a right to a series of separate payments. To the extent permitted under Section 409A of the Code, any separate payment or warranty benefit under this Plan and any Participation Notice or otherwise shall have no liability not be deemed "nonqualified deferred compensation" subject to Section 409A to the Executive extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other person if any provisions applicable exception or provision of this Agreement are determined to constitute Section 409A of the Code. All payments of nonqualified deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, to be made hereunder upon a termination of employment may only be made upon the Participant's Separation from Service. 7.3 Notwithstanding anything to the contrary herein, no portion of a Participant's Retention Bonus shall be paid to any Participant during the six-month period following such Participant's Separation from Service if the Company reasonably determines that paying such amounts at the time or times indicated herein would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the conditions of, Code. If the payment of any such Section. amounts is delayed as a result of the previous sentence, then on the first business day following the end of such six-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of the applicable Participant's death), the Participant shall be paid a lump-sum amount equal to the cumulative amount that would have otherwise been payable to the Participant during such period (without interest).
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Section 409a. (a)
Anything in this Agreement Notwithstanding any provision to the contrary
notwithstanding, if at in 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 Agreement, in order to
the extent be eligible to receive any
payment or benefit that the Executive becomes entitled to termination benefits 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 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 deemed deferred compensation subject to Section 409A of the Code, your termination of employment must constitute a "separation from service" within the meaning of Treas. Reg. Section 1.409A-1(h) (a "Separation from Service"). (b) Notwithstanding anything herein to the contrary, if you are deemed at the time of your termination of employment with the Company to be a "specified employee" for purposes of Section 409A(a)(2)(B)(i) of the Internal Revenue Code but do of 1986, as amended (the "Code"), then to the extent delayed commencement of any portion of the termination benefits to which you are entitled under the Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of your termination benefits shall not satisfy an exemption from, be provided to you prior to the earlier of (i) the expiration of the six-month period measured from the date of the your Separation from Service with the Company or (ii) the conditions of, date of your death. Upon the earlier of such Section. dates, all payments deferred pursuant to this Section shall be paid in a lump sum to you, and any remaining payments due under the Agreement shall be paid as otherwise provided herein. The determination of whether you are a "specified employee" for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of your Separation from Service shall made by the Company in accordance with the terms of Section 409A of the Code and applicable guidance thereunder (including without limitation Treas. Reg. Section 1.409A-1(i) and any successor provision thereto). Notwithstanding the foregoing or any other provisions of the Agreement, you and the Company agree that, for purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under the Agreement shall be treated as a right to receive a series separate and distinct payments of compensation for purposes of applying the Section 409A of the Code.
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Section 409a. (a)
Anything in To the extent a Participant would otherwise be entitled to any payment or benefit that under this
Agreement 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 "specifie...d 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 first day of the seventh (7th) month following the Participant's Date of 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 this Plan shall be deemed to be a separate payment, and amounts payable under Section 2 of the Code, the Company determines that the Executive is this Plan shall be deemed not to be a "specified employee" within the meaning "deferral of compensation" subject to Section 409A(a)(2)(B)(i) of the Code, then 409A to the extent provided in the 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 Section 1.409A-1 through A‐6. (b) Notwithstanding anything to the contrary in this Plan or elsewhere, any payment or benefit that 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 final Treasury Regulation 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, 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 this 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 E-5 (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 this 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 this Plan and such participation in this Plan is later determined to be a "substitution" (within the meaning of Section 409A) for the benefits under such agreement or arrangement, then any payment or benefit described in under this Agreement constitutes "non-qualified deferred compensation" under Section 409A 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 This Agreement
is intended to
be exempt from or comply with the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning requirements of Section 409A of the
Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to Code ("Section 409A") and shall be construed and interpreted in accordance with such intent. To the extent any payment or benefit
that... the Executive becomes entitled to provided under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise is 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 409A, such benefit shall not be provided until the date in a manner 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 complies with Section 409A, including 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 IRS guidance promulgated with their original schedule. respect to Section 409A. (b) All reimbursements or provision of in-kind benefits provided and expenses eligible for reimbursement under pursuant to this Agreement shall be made in accordance with Treasury Regulation § 1.409A-3(i)(1)(iv) such that -16- the reimbursement or provision will be deemed payable at a specified time or on a fixed schedule relative to a permissible payment event. Specifically, the amount reimbursed or in-kind benefits provided under this Agreement during Executive's taxable year may not affect the amounts reimbursed or provided in any other taxable year (except that total reimbursements may be limited by a lifetime maximum under a group health plan), the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements reimbursement of an eligible expense 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 Executive's 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 incurred, and 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 provision of in-kind benefits benefit 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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Section 409a. (a)
Anything General. It is intended that payments and benefits made or provided under this Plan shall not result in
penalty taxes or accelerated taxation pursuant to Section 409A, and the Plan shall be interpreted and administered in accordance with that intent. If any provision of the Plan would otherwise conflict with or frustrate this
Agreement intent, that provision will be interpreted and deemed amended so as to avoid the conflict. Any payments that qualify for the "short-term deferral" ex...ception, the separation pay exception or another exception under Section 409A shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Section 409A, each payment of compensation under this Plan shall be treated as a separate payment of compensation for purposes of applying the exclusion under Section 409A for short-term deferral amounts, the separation pay exception or any other exception or exclusion under Section 409A. In no event may a Participant, directly or indirectly, designate the calendar year of any payment under this Plan. Despite any contrary provision of this Plan, any references to "termination of employment" or "Date of Termination" or similar term shall mean and refer to the contrary notwithstanding, date of a Participant's "separation from service," as that term is defined in Section 409A and Treasury regulation Section 1.409A-1(h). 14 (b) Delay of Payment. Notwithstanding any other provision of this Plan to the contrary, if at a Participant is considered a "specified employee" for purposes of Section 409A (as determined in accordance with the time of methodology established by the Executive's separation from service Company as in effect on the termination date), any payment that constitutes nonqualified deferred compensation within the meaning of Section 409A of the Code, the Company determines that the Executive is otherwise due to 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 Participant 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 Plan during the six-month period but for the application of this provision, and the balance of the installments shall be payable immediately following a Participant's separation from service (as determined in accordance with their original schedule. (b) All Section 409A) on account of a Participant's separation from service shall be accumulated and paid to such Participant on the first business day of the seventh month following such Participant's separation from service (the "Delayed Payment Date"). If such Participant dies during the postponement period, the amounts and entitlements delayed on account of Section 409A shall be paid to the personal representative of such Participant's estate on the first to occur of the Delayed Payment Date or 30 calendar days after the date of his or her death. (c) Reimbursement and In-Kind Benefits. Notwithstanding anything to the contrary in this Plan, all reimbursements and in-kind benefits provided and under this Plan that are subject to Section 409A shall be made in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Participant's lifetime (or, if longer, through the 20th anniversary of the Effective Date) or during a shorter period of time specified in this Plan); (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (iii) the reimbursement under this Agreement shall of an eligible expense will 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 made no event shall any reimbursement be paid after later than the last day of the taxable calendar year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred; and (iv) 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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Section 409a.
(a) Anything in All payments to be made upon a termination of employment under this Agreement
to the contrary notwithstanding, if at the time of the Executive's separation will only be made upon a "separation from
service 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 A...greement 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 Code. In no event shall any reimbursement be paid after may Employee, directly or indirectly, designate the last day calendar year 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) payment. To the maximum extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" permitted 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 its corresponding regulations, the payments and cash severance benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to payable under the Executive or any other person if any provisions of this Agreement are determined intended to constitute deferred compensation subject to meet the requirements of the short-term deferral exemption under Section 409A of the Code but do and the "separation pay exception" under Treas. Reg. §1.409A-1(b)(9)(iii). For purposes of the application of Treas. Reg. § 1.409A-1(b)(4)(or any successor provision), each payment in a series of payments to Employee will be deemed a separate payment. Notwithstanding anything in the Agreement to the contrary or otherwise, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to the Agreement does not satisfy an exemption from, constitute a "deferral of compensation" within the meaning of Section 409A 9 of the Code and its implementing regulations and guidance, (a) the expenses eligible for reimbursement or in-kind benefits provided to Employee must be incurred during the conditions of, such Section. Term (or applicable survival period), (b) the amount of expenses eligible for reimbursement or in-kind benefits provided to Employee during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Employee in any other calendar year, (c) the reimbursements for expenses for which Employee is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (d) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.
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Section 409a. (a)
Anything in The parties hereby acknowledge and agree that all benefits or payments provided by the Company to Employee pursuant to this Agreement
are intended either to be exempt from the provisions of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, "Section 409A"), or to be in compliance with Section 409A, and the Agreement shall be interpreted to the
contrary notwithstanding, if at greatest extent possible to be ...so exempt or in compliance. If there is an ambiguity in the time language of the Executive's separation from service Agreement, or if Section 409A guidance indicates that a change to the Agreement is required or desirable to achieve exemption or compliance with Section 409A, Company and Employee agree to attempt to renegotiate in good faith to clarify the ambiguity or make such change. (b) If any severance or other payments that are required by the Agreement are to be paid in a series of installment payments, each individual payment in the series shall be considered a separate payment for purposes of Section 409A. 7 (c) If any severance compensation or other benefit provided to Employee pursuant to this Agreement that constitutes "nonqualified deferred compensation" within the meaning of Section 409A is considered to be paid on account of "separation from service" within the Code, the Company determines that the Executive meaning of Section 409A, and Employee is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, 409A, then to the extent required to avoid the imposition of taxation under Section 409A, no payments of any payment of such severance 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 other benefit shall not be provided until the date that is the earlier of (A) made for six (6) months and plus one (1) day after the Executive's separation from service, or (B) the Executive's death. If date (the "New Payment Date"). The aggregate of any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts payments that would have otherwise have been paid during the six-month period but for between the application of this provision, separation date 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 New Payment Date shall be paid as soon as administratively practicable, but to the Employee in no a lump sum on the New Payment Date. In the event shall any reimbursement be paid after that that period for the last day consideration of (and effectiveness 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 Effective Release spans two calendar years then, 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 necessary 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 409A, payments hereunder will not commence or be made until 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. latter calendar year.
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Section 409a. (a)
Anything The Agreement is intended to comply with the requirements of section 409A of the Code or an exemption from section 409A, and shall in
this all respects be administered in accordance with section 409A. Notwithstanding anything in the Agreement to the
contrary notwithstanding, if at the time contrary, distributions upon termination of
the Executive's separation employment may only be made upon a section 409A "separation from
service within the meaning service." For purposes of
Section...Company determines that right to a series of payments under the Executive is Agreement shall be treated as a "specified employee" within right to a series of separate payments. In no event may the meaning Executive, directly or indirectly designate the calendar year of Section 409A(a)(2)(B)(i) payment. In no event shall the timing of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account Participant's execution of the Executive's separation from service would be considered deferred compensation otherwise subject to Release, directly or indirectly, result in the 20 percent additional tax imposed pursuant to Section 409A(a) Participant designating the calendar year 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 payment. All reimbursements 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 made or provided by in accordance with the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day requirements of section 409A of the taxable year following Code. (b) Notwithstanding anything in the taxable year in which Agreement to 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 contrary, if required by section 409A of the Code, any amount that is considered "deferred compensation" under this Agreement and that is required to the extent that such payment or benefit is payable upon the Executive's termination be postponed for a period 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 six months after separation from service has occurred pursuant to section 409A shall be made postponed as required by section 409A. The accumulated postponed amount, shall be paid in accordance with a lump sum payment within ten (10) days after 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 end of the Code. To six-month period. If the extent that any provision of this Agreement is ambiguous as Executive dies during the postponement period prior to its compliance with Section 409A the payment of the Code, postponed amount, the provision amounts withheld on account of section 409A, shall be read in such a manner so that all payments hereunder comply with Section 409A paid to the personal representative of the Code. Each payment pursuant to this Agreement or Executive's estate within sixty (60) days after the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes date 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. his death.
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Section 409a.
(a) Anything in The parties intend for the payments and benefits under this Agreement to
the contrary notwithstanding, if at the time of the Executive's separation be exempt from
service within the meaning of Section 409A of the
Code, Internal Revenue Code of 1986, as amended ("Section 409A") or, if not so exempt, to be paid or provided in a manner which complies with the
Company determines requirements of such section, and intend that
the Executive is a "specified employee" within the meaning o...f 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 construed and administered in accordance with such intention. If any payments or benefits due to you from the Company or incurred by its subsidiaries would cause 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 application of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided an accelerated 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 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 409A, such payments or benefits shall be payable only upon restructured in a manner which does not cause such an accelerated or additional tax. For purposes of the Executive's "separation from service." The determination limitations on nonqualified deferred compensation under Section 409A, each payment of whether and when a separation from service has occurred compensation under this Agreement shall be made treated as a separate payment of compensation. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required 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 order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code. To the extent (i) amounts that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall would otherwise be read in such a manner so payable and benefits that all payments hereunder comply with Section 409A of the Code. Each payment would otherwise be provided pursuant to this Agreement or during the Restrictive Covenants Agreement six-month period immediately following your separation from service shall instead be paid on the first business day after the date that is intended to constitute a separate payment for purposes six months following your termination date (or death, if earlier) and (ii) if the timing 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 execution of this Agreement are determined to constitute deferred compensation subject to affects whether the payments provided under Section 409A 4 otherwise would commence in the calendar year of the Code but do not satisfy an exemption from, Separation Date or a subsequent year, the conditions of, such Section. payments shall commence in the subsequent year.
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