This page contains Section 409a clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Section 409a. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp
...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Variations of a "Section 409a" Clause from Business Contracts
Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this This Agreement is ambiguous as intended to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each 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 Company makes no representations that the payments and benefits provided hereunder without additional cost to either party. (e) The under this Agreement comply with Section 409A and in no event shall the Company makes no representation or warranty and shall have no liability to the Executive be liable for all or any portion of any taxes, penalties, interest or other person if any provisions expenses that may be incurred by the 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 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 or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Each payment pursuant to Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and in no event shall the Company be liable for all related rules and regulations in order to preserve or any portion of any taxes, penalties, interest or other expenses that may be incurred by the payments and benefits provided hereunder without additional cost to either party. (e) The Grantee on account of non-compliance with Section 409A of the Code. If the Company makes no representation or warranty and shall have no liability concludes that this Agreement is subject to the Executive requirements of Section 409A, neither the time nor the schedule of the payment of the pRSUs may be accelerated or any other person if any provisions of this Agreement are determined subject to constitute deferred compensation subject a further deferral except as permitted pursuant to Section 409A of the Code but do not satisfy an exemption from, or and the conditions of, such Section. applicable regulations. In addition, if the Company concludes that this Agreement is subject to Section 409A, payment of the pRSUs may be delayed only in accordance with Section 409A of the Code and the applicable regulations.
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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 Internal Revenue Code of 1986, as amended ("Section 409A"), including the exceptions thereto, and shall be construed and administered in accordance with such intent. 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 excluded from Section 409A either as separation pay due to an involuntary separation from service, as a short-term deferral, or as a settlement payment pursuant to a bona fide legal dispute shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, any installment payments provided under this Agreement or the Restrictive Covenants Agreement is intended to constitute shall each be treated as a separate payment for purposes of Treasury Regulation payment. To the extent required under Section 1.409A-2(b)(2). The parties agree that 409A, any payments to be made under this Agreement may in connection with a termination of employment shall only be amended, as reasonably requested by either party, and as may be necessary to fully comply with made if such termination constitutes a "separation from service" under Section 409A of 409A. Notwithstanding the Code and all related rules and regulations in order to preserve foregoing, The Company makes no representations that the payments and benefits provided hereunder without additional cost to either party. (e) The under this Agreement comply with Section 409A and in no event shall Company makes no representation or warranty and shall have no liability to the Executive be liable for all or any portion of any taxes, penalties, interest, or other person if any provisions expenses that may be incurred by 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 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 of the Code and 11 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 he liquidated or exchanged for any other benefit.
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Section 409a.
(a) Anything in a. Any compensation or benefits payable under this
Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service Plan that constitutes "nonqualified deferred compensation" within the meaning of Section 409A of the
Code, Code and which are designated as payable upon the Covered Employee's termination of employment (other than accrued obligations which must be paid upon such termination under applicable law) shall, subject to Section (b) below..., be payable upon the Covered Employee's "separation from service" with the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A (a "Separation from Service"), regardless of when the termination of employment occurs. b. To the maximum extent permitted by applicable law, amounts payable in connection with a Separation from Service shall be paid in reliance upon Treasury Regulation 1.409A-1(b)(9) (Separation Pay Plans) or Treasury Regulation 1.409A-1(b)(4) (Short-Term Deferrals). However, notwithstanding anything to the contrary in this Plan, if the Covered Employee is deemed by the Company at the time of the Code, then Covered Employee's Separation from Service to be a "specified employee" for purposes of Section 409A, to the extent delayed commencement of any payment or benefit that portion of the Executive becomes benefits to which the Covered Employee is entitled to under this Agreement or otherwise on account Plan is required in order to avoid a prohibited distribution under Section 409A, such 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 Covered Employee's benefits shall not be provided until to the date that is Covered Employee prior to the earlier of (A) six months and one day after (i) 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 expiration of the six-month period but for measured from the application of this provision, and the balance date of the installments shall be payable in accordance Covered Employee's Separation from Service 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 (ii) the Executive during date of the time periods set forth Covered Employee's death. Upon the first business day following the expiration of the applicable period, 7 all payments deferred pursuant to the preceding sentence shall be paid in a lump sum to the Covered Employee (or the Covered Employee's estate or beneficiaries), and any remaining payments due to the Covered Employee under this Agreement. All reimbursements Plan 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 otherwise 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) herein. c. To the extent applicable, this Plan shall be interpreted in accordance with, and incorporate the terms and conditions required by, Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the adoption of this Plan. Notwithstanding any provision of this Plan to the contrary, in the event that the Company determines that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" amounts payable hereunder will be immediately taxable to you under Section 409A of the Code and related Department of Treasury guidance, to the extent permitted under Section 409A of the Code, and the Company may, 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 permitted under Section 409A of the Code. To Code (i) cooperate in good faith to adopt such amendments to this Plan and appropriate policies and procedures, including amendments and policies with retroactive effect, that they determine necessary or appropriate to preserve the extent that any provision intended tax treatment of the benefits provided by this Plan, preserve the economic benefits of this Agreement is ambiguous Plan and avoid less favorable accounting or tax consequences for the Company and/or (ii) take such other actions as mutually determined necessary or appropriate to its compliance with exempt the amounts payable hereunder from Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder Code or to comply with Section 409A the requirements 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 thereby avoid 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 application 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, penalty taxes under such Section. section.
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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 Corporation 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 Corporation) 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 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 separate payments, and amounts payable under Section 3 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 -11- 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 (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
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") under the
Company determines "short-term deferral rule" and, in the event that
any payments hereunder are determined not to be exempt, this Agreement is intended to comply with Section 409A, including the
Executive is a "specified employee" wit...hin the meaning any other exceptions thereto, and shall be construed and administered in accordance with such intent. Notwithstanding any other provision of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or otherwise on account of the Executive's an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation from service would be considered deferred compensation otherwise subject pay due 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 an involuntary separation from service, as a short-term deferral, or (B) the Executive's death. If any such delayed cash as a settlement payment is otherwise payable on an installment basis, the first payment shall include pursuant to 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 bona fide legal dispute shall be payable in accordance with their original schedule. (b) All in-kind benefits excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, any installment payments provided and expenses eligible for reimbursement under this Agreement shall each be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid treated 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) a separate payment. To the extent that required under Section 409A, any payment or benefit described in payments to be made under this Agreement in connection with a termination of employment shall only be made if such termination constitutes "non-qualified deferred compensation" a "separation from service" under Section 409A of 409A. Notwithstanding the Code, and to foregoing, the extent Employer makes no representations 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 under this Agreement comply with Section 409A and in no representation event shall the Employer be liable for all or warranty and shall have no liability to any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Executive or any other person if any provisions on account of non-compliance with Section 409A. 16. Counterparts. The Parties may execute this Agreement in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart's signature page of this Agreement are determined by facsimile, email in portable document format (.pdf), or by any other electronic means intended to constitute deferred compensation subject to Section 409A preserve the original graphic and pictorial appearance of a document has the Code but do not satisfy same effect as delivery of an exemption from, or the conditions of, such Section. executed original of this Agreement.
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Section 409a.
(a) Anything in 8.1It is intended that all of the severance benefits and other payments payable under this Agreement
satisfy, to the
contrary notwithstanding, if at greatest extent possible, the
time exemptions from the application of
the Executive's separation from service within the meaning of Code Section 409A
of provided under Treasury Regulations 1.409A‐1(b)(4), 1.409A‐1(b)(5) and 1.409A‐1(b)(9), and this Agreement will be construed to 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 greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Code Section 409A. 8.2A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefit benefits 5 upon or following a termination of employment unless such termination is also a Separation from Service and, for purposes of any such provision of this Agreement, references to a "termination," "termination of service" or like terms will mean Separation from Service. 8.3To the extent that the Executive becomes entitled to reimbursements or other in-kind benefits under this Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) all expenses or otherwise other reimbursements hereunder will be made on account of the Executive's separation from service would be considered deferred compensation otherwise subject or prior 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 such expenses were incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in by Executive, (B) any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is will not be subject to liquidation or exchange for another benefit. (c) To benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year will in any way affect the extent that expenses eligible for reimbursement, or in-kind benefits to be provided, in any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under other taxable year. 8.4For purposes of Code Section 409A of the Code, and 409A, Executive's right to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such receive any installment 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 pursuant to this Agreement will be administered in accordance with Section 409A treated as a right to receive a series of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. distinct payments.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, if at the time of the Executive's separation in this Plan, no Deferred Compensation Separation Benefits (as defined below) payable under this Plan will be considered due or payable until and unless Executive has a "separation from
service service" within the meaning of Section
409A of 409A. Notwithstanding anything to the
Code, the Company determines that the contrary in this Plan, if Executive is a "specifi
...ed employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of the Code, Executive's "separation from service" other than due to Executive's death, then any severance benefits payable pursuant to the extent this Plan and any payment other severance payments or benefit separation benefits, that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would in each case when considered together may be considered deferred compensation under Section 409A (together, the "Deferred Compensation Separation Benefits") and are otherwise subject due to Executive on or within the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as six (6) month period following Executive's "separation from service" will accrue during such six (6) month period and will instead become payable in a result of the application of Section 409A(a)(2)(B)(i) of the Code, such lump sum payment shall not be payable and such benefit shall not be provided until on the date that is the earlier of (A) six (6) months and one (1) day after following the date of Executive's separation "separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall service." All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with their original schedule. (b) All in-kind benefits provided the payment schedule applicable to each payment or benefit. Each payment and expenses eligible for reimbursement benefit payable under this Agreement shall be provided by Plan is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Company or incurred by Treasury Regulations. (b) Notwithstanding anything to the Executive during the time periods set forth contrary in this Agreement. All reimbursements shall Plan, if Executive dies following Executive's "separation from service" but prior to the six (6) month anniversary of the date of Executive's "separation from service," then any Deferred Compensation Separation Benefits delayed in accordance with this Section will be paid payable in a lump sum as soon as administratively practicable, but in no event shall any reimbursement be paid practicable after the last day date of Executive's death, but not later than ninety (90) days after the date of Executive's death, and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. (c) It is the intent of this Plan to comply with the requirements of Section 409A so that none 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 severance payments and benefits to be provided or hereunder will be subject to the expenses eligible for reimbursement additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. Notwithstanding anything to the contrary in any other taxable year (except for any lifetime or other aggregate limitation applicable the Plan, including but not -10- limited to medical expenses). Such Section 1(c), the Committee reserves the right to reimbursement amend the Plan as it deems necessary or in-kind benefits is not subject advisable, in its sole discretion and without the consent of Executive, 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 or 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 otherwise avoid income recognition under 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 prior to the Executive actual payment of any severance benefits or imposition of 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. additional tax.
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Section 409a.
(a) Anything in It is intended that none of the payments or benefits under this Agreement
will constitute deferred compensation under Code Section 409A and the final regulations and official guidance thereunder ("Section 409A"), but rather such payments and benefits will be exempt from, or if not exempt from will comply with, Section 409A so that none of the payments to be provided under this Agreement will be subject to the
contrary notwithstanding, if at the time of the Executive's separation ...from service within the meaning of additional tax imposed under 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 409A, and any ambiguities or ambiguous terms will be interpreted in such manner. Each payment and benefit to the extent any payment be paid or benefit that the Executive becomes entitled to provided under this Agreement or otherwise on account is intended to constitute a series of separate payments for purposes of Section 1.409A-2(b)(2) of the Executive's separation from service would Treasury Regulations. Notwithstanding the foregoing, if and to the extent necessary to avoid subjecting Employee to an additional tax under Section 409A, any payments or benefits deemed to be considered separation-related deferred compensation otherwise subject to (within the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application meaning of Section 409A(a)(2)(B)(i) of the Code, such payment shall not 409A), whether under this Agreement or any other arrangement, payable to Employee will be payable and such benefit shall not be provided delayed until the date that is the earlier of (A) six (6) months and one (1) day after the Executive's following Employee's separation from service, or (B) service (within the Executive's death. If meaning of Section 409A), except that in the event of Employee's death, any such delayed cash payment is otherwise payable on an installment basis, payments will be paid as soon as practicable after 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 date of this provision, Employee's death, and the balance of the installments shall in each case all subsequent payments and benefits 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 or benefit. The Parties will work together in good faith to consider either (i) amendments to this Agreement, or (ii) revisions to this Agreement shall be provided by with respect to the Company payment of any awards, which are necessary or incurred by appropriate to avoid imposition of any additional tax or income recognition prior to the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in actual payment to Employee under Section 409A. In no event shall will the Releasees reimburse Employee for any reimbursement taxes that may be paid after the last day imposed on Employee as a result of Section 409A. In no event will Employee have discretion to determine 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 payment of 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. separation-related payments.
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