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 This Agreement is intended to comply with Section 409A ("Section 409A") of the Internal Revenue Code of 1986, as amended, or an exemption thereunder and will be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Secti...on 409A either as separation pay due to an involuntary separation from service or as a short-term deferral will be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement will be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment will only be made upon a "separation from service" under Section 409A. To the extent any reimbursements or in-kind benefit payments under this Agreement are subject to Section 409A, such reimbursements and in-kind benefit payments will be made in accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv). Notwithstanding anything in this Agreement to the contrary notwithstanding, contrary, if at the time any payment or benefit provided to you in connection with your termination of the Executive's separation from service employment is determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A of the Code, the Company determines that the Executive is and you are determined to be a "specified employee" within the meaning of under Section 409A(a)(2)(B)(i) of the Code, 409A, then to the extent any such 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 will not be payable and such benefit shall not be provided paid until the first payroll date that is to occur following the earlier 6-month anniversary of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If your termination of employment or, if earlier, upon your death (the "Specified Employee 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 otherwise have been paid during before the six-month period but for Specified Employee Payment Date will be paid to you, without interest, in a lump sum on the application of this provision, Specified Employee Payment Date and the balance of the installments shall thereafter, any remaining payments will be payable paid without delay in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by Notwithstanding 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 foregoing, Heartland makes no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent representations that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes under this Agreement comply with Section 409A, and in no representation or warranty and shall have no liability to the Executive event will Heartland be liable for all or any portion of any taxes, penalties, interest, or other person if any provisions expenses that may be incurred by you on account of this Agreement are determined to constitute deferred compensation subject to non-compliance with Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, in this Agreement, no severance payments or benefits payable to Employee, if
at any, pursuant to this Agreement that, when considered together with any other severance payments or separation benefits, is considered deferred compensation under Internal Revenue Code Section 409A (together, the
time of the Executive's separation "Deferred Payments") will be payable until Employee has a "separation from
service ...service" within the meaning of Section 409A ("Section 409A") of the Code, Internal Revenue Code of 1986, as amended (the "Code"). Similarly, no severance payable to Employee, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until Employee has a "separation from service" within the Company determines that the Executive meaning of Section 409A. (b) Further, if Employee is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's Employee's separation from service would be considered deferred compensation (other than due to death), any Deferred Payments that otherwise subject to are payable within the 20 percent additional tax imposed pursuant to Section 409A(a) of first six (6) months following Employee's separation from service will become payable on the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until first payroll date that occurs on or after the date that is the earlier of (A) six (6) months and one (1) day after following the Executive's date of Employee's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall service. All subsequent Deferred Payments, if any, will be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, in the event of Employee's death following Employee's separation from service but prior to the six (6) month anniversary of Employee's separation from service (or any later delay date), then any payments delayed in accordance with this Agreement shall paragraph will be provided by the Company or incurred by the Executive during the time periods set forth payable in this Agreement. All reimbursements shall be paid a lump sum as soon as administratively practicable, but in no event shall any reimbursement be paid practicable after the last day date of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any Employee's death and all other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall Deferred Payments will be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as payment schedule applicable to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. each payment or benefit. Each payment pursuant to this Agreement or and benefit payable under the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. (c) Any severance payment that satisfies the requirements of the "short-term deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations shall not constitute Deferred Payments for purposes of the Agreement. Any severance payment that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit shall not constitute Deferred Payments for purposes of the Agreement. For purposes of this subsection (c), "Section 409A Limit" will mean the lesser of two (2) times: (i) Employee's annualized compensation based upon the annual rate of pay paid to Employee during Employee's taxable year preceding Employee's taxable year of Employee's separation from service as determined under Treasury Regulation Section 1.409A-2(b)(2). The parties agree 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or (ii) the maximum amount that this Agreement may be amended, as reasonably requested by either party, and as may be necessary taken into account under a qualified plan pursuant to fully comply with Section 409A 401(a)(17) of the Code and all related rules and regulations for the year in order which Employee's employment is terminated. (d) The foregoing provisions are intended to preserve comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability under the Agreement will be subject to the Executive additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. Employee and the Company agree to work together in good faith to consider amendments to the Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any other person if any provisions of this Agreement are determined additional tax or income recognition prior to constitute deferred compensation subject actual payment to Employee under 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 Notwithstanding any other provision of this Agreement to the contrary
notwithstanding, if at or otherwise, except to the
time extent any expense, reimbursement or in-kind benefit provided to Employee does not constitute a "deferral of
the Executive's separation from service compensation" within the meaning of Section 409A of the Code,
11 and its implementing regulations and guidance: (i) the
Company determines that the Executive is a "specified employee" within the meaning amount... of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement 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; (ii) the reimbursements for expenses for which Employee is entitled to be reimbursed shall be provided by the Company made on 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 before the last day of the taxable calendar year following the taxable calendar year in which the applicable expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred; and (iii) 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 payment or reimbursement or in-kind benefits is hereunder may not subject be liquidated or exchanged for any other benefit. (b) For purposes of the application of Treas.Reg.§1.409A-1(b)(4) (or any successor provision), each payment in a series of payments provided to liquidation Employee pursuant to this Agreement will be deemed a separate payment. (c) Notwithstanding any other provision of this Agreement to the contrary or exchange for another benefit. (c) To the extent that otherwise, any payment or benefit described in this Agreement constitutes "non-qualified deferred Paragraph 7 that represents a "deferral of compensation" within the meaning of Section 409A of the Code shall only be paid or provided to Employee upon his "separation from service" within the meaning of Treas.Reg.§1.409A-1(h) (or any successor regulation). To the extent compliance with the requirements of Treas.Reg.§1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an additional tax under Section 409A of the Code, Code to payments due to Employee upon or following his "separation from service," then notwithstanding any other provision of this Agreement (or any otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise due within six months following Employee's "separation from service" will be deferred (without interest) and paid to Employee in a lump sum immediately following that six month period. In the event Employee dies during that six month period, the amounts deferred on account of Treas.Reg.§1.409A-3(i)(2) (or any successor provision) shall be paid to the extent that such payment or benefit is payable upon personal representatives of the Executive's termination of employment, then such Employee's estate within sixty (60) days following Employee's death. This provision shall not be construed as preventing payments or benefits shall be payable only upon to Employee pursuant to Paragraph 7 in the Executive's first six months following Employee's "separation from service." The determination service" equal to an amount up to two (2) times the lesser of: (i) Employee's annualized compensation for the year prior to the "separation from service;" and (ii) the maximum amount that may be taken into account under a qualified plan pursuant to section 401(a)(17) 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). Code. (d) The parties intend that Notwithstanding any other provision of this Agreement will to the contrary or otherwise, all benefits or payments provided by the Company to Employee that would be administered in accordance with deemed to constitute "nonqualified deferred compensation" within the meaning of Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as Code are 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 Notwithstanding any other provision in this Agreement to the contrary 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 otherwise, distributions may only be made under this Agreement may be amended, as reasonably requested upon an event and in a manner permitted 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. applicable exemption.
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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 of... Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company construed and administered in accordance with such intention. If any payments or incurred by benefits due to 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 under this Agreement constitutes "non-qualified deferred compensation" would cause the application of an accelerated or 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 restructured in a manner which does not cause such an accelerated or additional tax. For purposes of the limitations on nonqualified deferred compensation under Section 409A, each payment of compensation under this Agreement be treated as a separate payment of compensation. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would be otherwise payable only upon and benefits that would be otherwise provided during the six month period immediately following the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall instead be made in accordance with paid on the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend first business day after the date 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. six months following Executive's separation from service.
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Section 409a.
(a) Anything in 7.1 Interpretation. The payments provided under this
Agreement Plan are intended to satisfy the short-term deferral and severance pay plan exceptions to the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning application of Section 409A of the
Code, Code (the "Section 409A"). To the
Company determines extent that the
Executive benefits become subject to Section 409A, this Plan will be interpreted and construed in favor of the Par...ticipant to the fullest extent allowed under Section 409A and the applicable guidance thereunder to satisfy the requirements of an exception from the application of Section 409A or, alternatively, to comply with Section 409A and applicable guidance thereunder. Each payment of compensation under this Plan will be treated as a "separate payment" of compensation for purposes of applying Section 409A and the short-term deferral and severance pay plan exceptions. 7.2 Separation from Service and Specified Employee. To the extent Section 409A applies, any reference herein to a termination of employment will mean a "separation from service" as defined in Treasury Regulation § 1.409A-1(h). Notwithstanding anything to the contrary in the Plan, to the extent required under Section 409A, if the Participant is deemed on the date of termination of employment to be a "specified employee" within the meaning of that term under Section 409A(a)(2)(B)(i) of the Code, 409A(a)(2)(B), then with regard to the extent any payment or the provision of any benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified "nonqualified deferred compensation" under Section 409A payable on account of the Code, and to the extent that a "separation from service," such payment or benefit is payable upon shall not be made or provided until the Executive's termination earlier of employment, then such (a) six (6) months and a day after the Participant's "separation from service," or (b) the Participant's death. Upon the expiration of the foregoing delay period, all payments or and benefits delayed pursuant to this paragraph shall be payable only upon paid to the Executive's "separation from service." The determination of whether Participant in a lump sum, and when a separation from service has occurred any remaining payments and benefits due under the Plan shall be made paid or provided in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that normal payment dates specified for them herein. 7.3 Payment Dates and Offsets. Whenever a payment under this Agreement will Plan specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be administered in accordance with Section 409A within the sole discretion of the Code. To Employer. In the event the payment period under this Plan for any nonqualified deferred compensation commences in one calendar year and ends in a second calendar year, the payment shall not be paid until the later of the first payroll date of the second calendar year, or the date that such release becomes effective and irrevocable, 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. In no event shall any payment or benefit under the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement Plan that 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 be subject to offset by any other amount except as specifically permitted by Section 409A. 4 7.4 No Warranty or Guaranty of Tax Treatment. The tax treatment of the Code but do payments provided under this Plan is not satisfy an exemption from, warranted or guaranteed. Neither the conditions of, such Section. Employer nor its affiliates represent or guarantee that any particular federal or state income, payroll or other tax treatment will result from the payments or benefits payable under this Plan. The Employer does not represent that this Plan complies with Section 409A and in no event shall the Employer, its Affiliates nor their respective directors, officers, employees or advisers be liable for any additional tax, interest or penalty that may be imposed on the Participant (or any other individual claiming a benefit through the Participant) pursuant to Section 409A or damages for failing to comply with Section 409A. The Participant is solely responsible for the proper tax reporting and timely payment of any tax or interest for which he or she is liable as a result of the compensation or benefits payable pursuant to this Plan.
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Section 409a.
(a) Anything in this Agreement to To the
contrary notwithstanding, if at the time of the Executive's separation extent that any payment hereunder does not meet an exemption from
service within the meaning of Section section 409A of the
Code, Internal Revenue Code of 1986, as amended (the "Code"), then this Agreement is intended to comply with the
Company determines applicable requirements of Code section 409A and shall be interpreted and administered in a manner that
is consistent with the
Execu...tive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) foregoing intent. The provisions of the Code, then Agreement that require payment upon a termination shall be interpreted to require that Consultant have a "separation from service" with the Company, as such term is defined in regulations under Code section 409A. To the extent that any payment expense reimbursements or benefit that the Executive becomes entitled to provision of any in-kind benefits under this Agreement or otherwise on account of the Executive's separation from service would are determined to be considered deferred compensation otherwise subject to Code section 409A (including any exemptions thereto), the 20 percent additional tax imposed pursuant to Section 409A(a) amount 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 or the provision of any in-kind benefit in one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits to 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 any other calendar year (except for any aggregate limitation applicable to medical expenses), in no event shall any reimbursement expenses be paid reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses Consultant incurred such expenses, and in one taxable year no event 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 the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a. (a)
Anything in For purposes of this
Agreement to the contrary notwithstanding, if at the time Agreement, "Section 409A" means Section 409A of the
Executive's separation Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder (and such other Treasury or Internal Revenue Service guidance) as in effect from
service time to time. In addition, for purposes of this Agreement, with respect to payments of any amounts that are considered to be "deferred compensatio...n" subject to Section 409A, references to "termination of employment" (and substantially similar phrases) shall be deemed to refer to "separation from service" within the meaning of Section 409A (without application of any alternative definitions permitted thereunder) and shall be interpreted and applied in a manner that is consistent with the requirements of Section 409A. (b) It is intended that the provisions of this Agreement comply with Section 409A, and all provisions of this Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. In this regard, the provisions of this Section 20 shall only apply if, and to the extent, required to avoid the imputation of any tax, penalty or interest pursuant to Section 409A. In light of the Code, uncertainty as of the date hereof with respect to the proper application of Section 409A, the Company determines and you agree to negotiate in good faith to make amendments to this Agreement as the parties mutually agree are necessary or desirable to avoid the imposition of taxes or penalties under Section 409A. Notwithstanding the foregoing, you shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or for your account in connection with this Agreement (including any taxes and penalties under Section 409A), and neither the Executive Company nor any affiliate shall have any obligation to indemnify or otherwise hold you (or any beneficiary) harmless from any or all of such taxes or penalties. (c) Except as permitted under Section 409A, any deferred compensation that is subject to Section 409A and is payable to or for your benefit under any Company-sponsored plan, program, agreement or arrangement may not be reduced by, or offset against, any amount owing by you to the Company. (d) Notwithstanding anything in this Agreement to the contrary, in the event that you are deemed to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment 409A(a)(2)(B)(i), no payments or benefit benefits under Sections 12, 13 or 14 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 are "deferred compensation" subject to the 20 percent additional tax imposed pursuant Section 409A shall be made 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 you prior to the date that is six (6) months after the earlier date of (A) your "separation from service" or, if earlier, your date of death. Following any applicable six (6) month delay, all such delayed payments will be paid in a single lump sum on the earliest permissible payment date. In addition, for a period of six months and one day after following the Executive's date of separation from service, or (B) to the Executive's death. If extent that the Company reasonably determines that any of the benefit plan coverages described in this Agreement may not be exempt from U.S. federal income tax, you shall in advance pay to the Company an amount equal to the stated taxable cost of such coverages for six months. At the end of such six-month period, you shall be entitled to receive from the Company a reimbursement of the amounts paid by you for such coverages. 9 (e) For purposes of Section 409A, each of the payments that may be made under the Agreement are designated as separate payments. (f) To the extent that any reimbursements pursuant to this Agreement are taxable to you, any such delayed cash reimbursement 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 due to you shall be paid to you as soon promptly as administratively practicable, but and in no event shall any reimbursement be paid after all events on or before the last day of the your taxable year following the taxable year in which the related expense was incurred. The Any such reimbursements are not subject to liquidation or exchange for another benefit and the amount of in-kind such benefits provided or reimbursable expenses incurred and reimbursements that you receive in one taxable year shall not affect the in-kind amount of such benefits to be provided or the expenses eligible for reimbursement reimbursements that you receive 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. year.
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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 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 conside...red 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 comply 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 Code or an exemption thereunder and shall be read construed and interpreted in such a manner so that all payments hereunder comply is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Each payment pursuant to made under this Agreement or the Restrictive Covenants Agreement is intended to constitute shall be treated as a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 409A of the Code. Any provision in the Plan or this Agreement that is determined to violate the requirements of Section 409A of the Code shall be void and without effect until amended to comply with Section 409A of the Code (which amendment may be amended, as reasonably requested retroactive to the extent permitted by either party, Section 409A of the Code and as may be necessary made by the Company without the consent of the Employee). Any provision that is required by Section 409A of the Code to fully appear in the Agreement that is not expressly set forth herein shall be deemed to be set forth herein, and the Agreement shall be administered in all respects as if such provision was expressly set forth herein. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any portion of any taxes, penalties, interest or other person if any provisions expenses that may be incurred by the 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. Code.
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Section 409a.
(a) Anything in The amounts payable pursuant to this Agreement
are intended to be exempt from section 409A of the Code and related U.S. treasury regulations or official pronouncements ("Section 409A") and will be construed in a manner that is compliant with such exemption; provided, however, if and to the extent that any compensation payable under this Agreement is determined to be subject to Section 409A, this Agreement will be construed in a manner that will comply with Section 409A, and provi...ded further, however, that no person connected with this Agreement in any capacity, including but not limited to the Company and its affiliates, and their respective directors, officers, agents and employees, makes any representation, commitment or guarantee that any tax treatment, including but not limited to, federal, state and local income, estate and gift tax treatment, will be applicable with respect to any amounts payable or benefits provided under this Agreement. Notwithstanding any provision to the contrary notwithstanding, in this Agreement, if at Executive is deemed on the time Termination Date or expiration of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is Term to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, 409A, then to the extent any payment or benefit that the Executive becomes entitled to payments and benefits under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise that are subject to Section 409A and paid by reason of a termination of employment - 11 - will be made or provided on the 20 percent additional tax imposed pursuant to Section 409A(a) later of (a) 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 date set forth in this Agreement or (b) the date that is the earlier earliest 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 Termination Date or expiration of the installments Term, or (ii) the date of Executive's death (the "Delay Period"). Payments and benefits subject to the Delay Period will be paid or provided to Executive without interest for such delay. The terms "termination of employment" and "separate from service" as used throughout this Agreement refer to a "separation from service" within the meaning of Section 409A. 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 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, each installment payment 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 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) 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. payment.
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Section 409a.
(a) Anything in this Agreement It is intended that each installment of the payments provided hereunder constitute separate "payments" for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the
contrary notwithstanding, if at greatest extent possible, the
time of the Executive's separation exemption from
service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" with...in the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Code 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 provided under 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. 1.409A-1(b)(4) (as a "short-term deferral"). To the extent that any provision of this Agreement is ambiguous as to its compliance with Code Section 409A of the Code, 409A, the provision shall will be read in such a manner so that all payments hereunder comply with Code Section 409A 409A. To the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Code Section 409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement, or the amount of in-kind benefits to be provided, in any other calendar year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the Code. Each payment pursuant calendar year immediately following the calendar year in which Employee incurred such expenses, and in no event shall any right to this Agreement reimbursement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes provision of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may any in-kind benefit 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, liquidation or the conditions of, such Section. exchange for another benefit.
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