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 It is intended that any amounts payable under this Agreement
to shall be exempt from and avoid the
contrary notwithstanding, if at the time imputation of
the Executive's separation from service within the meaning of any tax, penalty or interest under Section 409A of the
Code, Internal Revenue Code of 1986, as amended, and the regulations, rules and other guidance promulgated thereunder ("Section 409A") to the fullest extent permissible under applicable law; provided that if any s...uch amount is or becomes subject to the requirements of Section 409A, it is intended that those amounts shall comply with such requirements. This Agreement shall be construed and interpreted consistent with that intent. In furtherance of that intent, if payment or provision of any amount or benefit hereunder that is subject to Section 409A at the time specified herein would subject such amount or benefit to any additional tax under Section 409A, the payment or provision of such amount or benefit shall be postponed to the earliest commencement date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. In no event, however, shall the Company determines that the Executive is be liable for any tax, interest or penalty imposed on you under Section 409A or any damages for failing to comply with Section 409A. (b) If you are a "specified employee" within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i) 1.409A-1(i) as of the Code, then Separation Date, notwithstanding anything to the extent contrary in this Agreement, you shall not be entitled to any payment pursuant to Section 12(b) or benefit that 13 until the Executive becomes entitled to under this Agreement or otherwise on account earlier of (A) the Executive's date which is six (6) months after your separation from service would be considered deferred compensation otherwise subject (within the meaning of Section 409A) for any reason other than death, or (B) the date of your death; provided that this paragraph shall only apply if, and to the 20 percent additional tax imposed extent, required to avoid the imputation of any tax, penalty or interest pursuant to Section 409A(a) 409A. Any amounts otherwise payable to you upon or in the six (6) month period following your separation from service that are not so paid by reason of the Code this Section 16(b) shall be paid (without interest) 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 soon as practicable (and in any event within thirty (30) days) after the date that is six (6) months after your separation from service (provided that in the earlier event of (A) six months your death after such separation from service but prior to payment, then such payment shall be made as soon as practicable, and one day in all events within thirty (30) days, after the Executive's separation from service, date of your death). (c) Any reimbursement payment or (B) in-kind benefit due to you pursuant to Section 10, to the Executive's death. If any extent that 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 reimbursements or 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 are taxable to you, shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after on or before the last day of the your taxable year following the taxable year in which the related expense was incurred. The You agree to provide prompt notice to the Company of any such expenses (and any other documentation that the Company may reasonably require to substantiate such expenses) in order to facilitate the Company's timely reimbursement of the same. Reimbursements and in-kind benefits pursuant to Section 10 are not subject to liquidation or exchange for another benefit and the amount of in-kind such benefits provided or reimbursable expenses incurred that you receive in one taxable year shall not affect the in-kind amount of such reimbursements or benefits to be provided or the expenses eligible for reimbursement that you receive in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year. (d) For purposes of Section 409A, your right to reimbursement or in-kind benefits is not subject receive any installment payments hereunder shall be treated as a right to liquidation or exchange for another benefit. (c) To the extent that any receive a series of separate and distinct payments. Whenever a payment or benefit described in under this Agreement constitutes "non-qualified deferred compensation" under Section 409A specifies a payment period with 6 reference to a number of the Code, and to the extent that such days (e.g., 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 within thirty (30) days following the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will date of termination), 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 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. Company.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this This Agreement is ambiguous as intended to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to Internal Revenue Code ("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, including but not limited to, the rules governing distributions to specified Executives if applicable. 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 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 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 To the extent the Participant is or becomes subject to U.S. Federal income taxation, the RSUs and payments made pursuant to this Agreement are intended to comply with or qualify for an exemption from the requirements of Section 409A and this Agreement shall be construed consistently therewith. Neither the Company nor the Participant shall have any right to accelerate or defer payment under this Agreement except to the extent specifically permitted or required by Section 409A. Terms ...defined in the Agreement shall have the meanings given such terms under Section 409A if and to the extent required to comply with Section 409A, including that references to "termination of employment" shall be considered to be references to a "separation from service" as defined under Section 409A. Notwithstanding any other provision of this Agreement, the Company reserves the right, to the extent it deems necessary or advisable, in its sole discretion, to unilaterally amend the Plan and/or this Agreement to ensure that all awards hereunder qualify for exemption from or otherwise comply with Section 409A; provided, however, that the contrary notwithstanding, if at Company makes no undertaking to preclude Section 409A from applying to this Award or to guarantee compliance therewith. Any payments described in this Section 5 that are due within the time "short term deferral period" as defined in Section 409A shall not be treated as deferred compensation unless applicable law requires otherwise. If and to the extent any portion of any payment, compensation or other benefit provided to the Executive's separation from service Participant in connection with his or her employment termination is determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A and the Participant is a specified employee as defined in Section 409A(2)(B)(i) of the Code, as determined by the Company determines in accordance with its procedures, by which determination the Participant hereby agrees that the Executive he or she is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) bound, such portion of the Code, then to the extent any payment payment, compensation or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such other benefit shall not be provided until paid before the date day that is the earlier of (A) six months and plus one day after the Executive's date of separation from service, or (B) the Executive's death. If service (as determined under Section 409A (the "New Payment Date")), except as Section 409A may then permit. The aggregate of any such delayed cash payment is payments that otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid to the Participant during the six-month period but for between the application date of this provision, separation from service and the balance of the installments New Payment Date shall be payable paid to the Participant in accordance with a lump sum on the New Payment Date, and any remaining payments will be paid on their original schedule. (b) All in-kind benefits provided Notwithstanding the foregoing, the Company, its affiliates, directors, officers 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 agents shall have no liability to the Executive a Participant, or any other person party, if any provisions of this Agreement are determined the RSU that is intended to constitute deferred compensation subject to be exempt from, or compliant with, Section 409A is not so exempt or compliant, or for any action taken by the Company's Board of the Code but do not satisfy an exemption from, Directors, a committee thereof or the conditions of, such Section. its delegates.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time It is intended that all 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 severance benefits and other payments payable under this Agreement
or otherwise on account of the... Executive's separation from service would be considered deferred compensation otherwise subject satisfy, to the 20 percent additional tax imposed pursuant to Section 409A(a) of greatest extent possible, the Code as a result of exemptions from the application of Code Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable 409A provided under Treasury Regulations 1.409A 1(b)(4), 1.409A 1(b)(5) and such benefit shall not be provided until the date that is the earlier of (A) six months 1.409A 1(b)(9), 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 will be provided by construed to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid greatest extent possible 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, consistent with those provisions, 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 no so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Code 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 (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A 2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by either party, the Company at the time of Executive's Separation from Service to be a "specified employee" for purposes of Code Section 409A(a)(2)(B)(i), and as may be necessary to fully comply with Section 409A if any of the Code and all related rules and regulations payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to preserve avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) the expiration of the six-month period measured from the date of Executive's Separation from Service with the Company, (ii) the date of Executive's death or (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. 5 6. Definitions. (i) Cause. For purposes of this Agreement, "Cause" for termination means (a) conviction of, or the entry of a plea of guilty or no contest to, a felony or any crime that may materially adversely affect the business, standing or reputation of the Company; (b) dishonesty, fraud, embezzlement or other person if any provisions misappropriation of funds; (c) material breach of this Agreement are determined that remains uncured 30 days after written notice of breach; (d) willful refusal to constitute deferred compensation subject to Section 409A perform the lawful, good faith and reasonable directives of the Code but Company's Chief Executive Officer; or (e) termination of Executive's employment pursuant to Sections 10.2 and 10.3 of this Agreement. (ii) Good Reason. For purposes of this Agreement, Executive shall have "Good Reason" for resignation of employment with the Company if any of the following actions are taken by the Company without Executive's prior written consent: (a) a material reduction in Executive's Base Salary, unless the reduction is proportional to an across-the-board decrease affecting all senior executives; or (b) a material reduction in Executive's duties and responsibilities. Notwithstanding the foregoing, the Company may change Executive's duties and responsibilities to fit the needs of the Company so long as such change(s) do not satisfy an exemption from, or materially reduce Executive's duties to the conditions of, Company. In order to resign for Good Reason, Executive must provide written notice to the Company's Board within 30 days after the first occurrence of the event giving rise to Good Reason setting forth the basis for Executive's resignation, allow the Company at least 30 days from receipt of such Section. written notice to cure such event, and if such event is not reasonably cured within such period, Executive must resign from all positions Executive then holds with the Company not later than 90 days after the expiration of the cure period. (iii) Change-in-Control. For purposes of this Agreement, "Change-in-Control" will have the meaning set forth in the Amended and Restated Lipocine Inc. 2014 Equity Incentive Plan. (iv) Permanent Residence. For purposes of this Agreement, Executive shall have established permanent residency in Salt Lake County once he has registered to vote in Salt Lake County.
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Section 409a. (a)
Anything in The intent of the parties is that payments and benefits under this Agreement
comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively "Code Section 409A") and, accordingly, to the
contrary notwithstanding, if at maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the
time Interim CEO notifies the Company (with specificity as to the reason therefor) that the Interim CEO believes... that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Interim CEO to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with the Interim CEO, reform such provision to attempt to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall he made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Interim CEO and the Company of the Executive's separation applicable provision without violating the provisions of Code Section 409A. -12- (b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service." If the Code, Interim CEO is deemed on the Company determines that the Executive is date of termination to be a "specified employee" within the meaning of that term under Code 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 is considered deferred compensation under this Agreement or otherwise Code Section 409A payable on account of the Executive's separation a "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, service," such payment shall not be payable and such or benefit shall not be made or provided until at the date that which is the earlier of (A) the expiration of the six months (6)-month period measured from the date of such "separation from service" of the Interim CEO, 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 date of the Interim CEO's death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 22(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be payable paid or reimbursed to the Interim CEO in accordance with their original schedule. (b) All in-kind a lump sum, and any remaining payments and benefits provided and expenses eligible for reimbursement due under this Agreement shall be paid or provided by in accordance with the Company normal payment dates specified for them herein. (c) To the extent that reimbursements or incurred by the Executive during the time periods set forth in other in-kind benefits under this Agreement. All Agreement constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (A) all expenses or other reimbursements hereunder shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by 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 Interim CEO, (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 shall 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 shall 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 other taxable year. (d) For purposes of Code Section 409A, the Interim CEO's right to receive any installment payments pursuant to this Agreement constitutes "non-qualified deferred compensation" shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under Section 409A this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the solo discretion 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 Company. (e) Notwithstanding any other provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision contrary, in no event shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each any payment pursuant to under this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment that constitutes "nonqualified deferred compensation" 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 Code Section 409A of the Code and all related rules and regulations in order be subject 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 offset by any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to amount unless otherwise permitted by Code 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 herein to the contrary
notwithstanding, if at or otherwise, except to the
time extent any expense, reimbursement or in-kind benefit provided to Executive does not constitute a "deferral of
the Executive's separation from service compensation" within the meaning of Section 409A of the Code,
and its implementing regulations and guidance, (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any... calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (ii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following 4 the calendar year in which the applicable expense is incurred and (iii) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit. (b) Anything to the contrary herein notwithstanding, all benefits or payments provided by the Company determines to Executive that the Executive is a "specified employee" would be deemed to constitute "nonqualified deferred compensation" 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) 409A 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 are intended 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 Notwithstanding anything in this Agreement or to 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 contrary, 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 or an applicable exemption. (c) If 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 impacts Company's tax liability, then Executive agrees to reimburse Company in the amount of the Code but do not satisfy an exemption from, or the conditions of, such Section. liability incurred.
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Section 409a. (a)
Anything in It is intended that any amounts payable under this Agreement
to shall be exempt from and avoid the
contrary notwithstanding, if at the time imputation of
the Executive's separation from service within the meaning of any tax, penalty or interest under Section 409A of the
Code, Internal Revenue Code of 1986, as amended, and the regulations, rules and other guidance promulgated thereunder ("Section 409A") to the fullest extent permissible under applicable law; provided that if any s...uch amount is or becomes subject to the requirements of Section 409A, it is intended that those amounts shall comply with such requirements. This Agreement shall be construed and interpreted consistent with that intent. In furtherance of that intent, if payment or provision of any amount or benefit hereunder that is subject to Section 409A at the time specified herein would subject such amount or benefit to any additional tax under Section 409A, the payment or provision of such amount or benefit shall be postponed to the earliest commencement date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. In no event, however, shall the Company determines that the Executive is be liable for any tax, interest or penalty imposed on you under Section 409A or any damages for failing to comply with Section 409A. (b) If you are a "specified employee" within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i) 1.409A-1(i) as of the Code, then Separation Date, notwithstanding anything to the extent contrary in this Agreement, you shall not be entitled to any payment pursuant to Section 12(b) or benefit that 13 until the Executive becomes entitled to under this Agreement or otherwise on account earlier of (A) the Executive's date which is six (6) months after your separation from service would be considered deferred compensation otherwise subject (within the meaning of Section 409A) for any reason other than death, or (B) the date of your death; provided that this paragraph shall only apply if, and to the 20 percent additional tax imposed extent, required to avoid the imputation of any tax, penalty or interest pursuant to Section 409A(a) 409A. Any amounts otherwise payable to you upon or in the six (6) month period following your separation from service that are not so paid by reason of the Code this Section 16(b) shall be paid (without interest) 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 soon as practicable (and in any event within thirty (30) days) after the date that is six (6) months after your separation from service (provided that in the earlier event of (A) six months your death after such separation from service but prior to payment, then such payment shall be made as soon as practicable, and one day in all events within thirty (30) days, after the Executive's separation from service, date of your death). (c) Any reimbursement payment or (B) in-kind benefit due to you pursuant to Section 10, to the Executive's death. If any extent that 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 reimbursements or 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 are taxable to you, shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after on or before the last day of the your taxable year following the taxable year in which the related expense was incurred. The You agree to provide prompt notice to the Company of any such expenses (and any other documentation that the Company may reasonably require to substantiate such expenses) in order to facilitate the Company's timely reimbursement of the same. Reimbursements and in-kind benefits pursuant to Section 10 are not subject to liquidation or exchange for another benefit and the amount of in-kind such benefits provided or reimbursable expenses incurred that you receive in one taxable year shall not affect the in-kind amount of such reimbursements or benefits to be provided or the expenses eligible for reimbursement that you receive in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year. (d) For purposes of Section 409A, your right to reimbursement or in-kind benefits is not subject receive any installment payments hereunder shall be treated as a right to liquidation or exchange for another benefit. (c) To the extent that any receive a series of separate and distinct payments. Whenever a payment or benefit described in under this Agreement constitutes "non-qualified deferred compensation" under Section 409A specifies a payment period with reference to a number of the Code, and to the extent that such days (e.g., 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 within thirty (30) days following the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will date of termination), 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 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. Company.
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Section 409a.
(a) Anything in All payments under this Agreement
are intended to be exempt from, or in the alternative to comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the interpretive guidance issued thereunder ("Section 409A"), including the exceptions for short-term deferrals, and the Agreement will be constructed and interpreted in accordance with such intent. The parties hereby agree to negotiate in good faith to amend this Agreement as and when necess...ary or desirable to conform to or otherwise properly reflect any guidance issued under Section 409A after the date hereof without violating Section 409A. In case any one or more provisions of this Agreement fails to comply with the provisions of Section 409A, the remaining provisions of this Agreement shall remain in effect, and this Agreement shall be administered and applied as if the non-complying provisions were not part of this Agreement. The parties in that event shall endeavor to agree upon a reasonable substitute for the non-complying provisions, to the contrary notwithstanding, if at extent that a substituted provision would not cause this agreement to fail to comply with Section 409A, and, upon so agreeing, shall incorporate such substituted provisions into this Agreement. Each payment, including, for the time avoidance of the Executive's separation from service doubt, each Quarterly Retainer, made under this Agreement shall be designated as a "separate payment" 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 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 409A. All reimbursements and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be made or provided by in accordance with the Company requirements of Section 409A to the extent that such reimbursements or incurred by the Executive during the time periods set forth in this Agreement. in-kind benefits are subject to Section 409A. All reimbursements for expenses paid pursuant hereto that constitute taxable income to Mr. Morgan shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after later than the last day end of the taxable calendar year next following the taxable calendar year in which Mr. Morgan incurs such expense or pays such related tax. Unless otherwise permitted by Section 409A, 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 under this Agreement shall not be subject to liquidation or exchange for another benefit. (c) To benefit and the extent that amount of expenses eligible for reimbursement, or in-kind benefits, provided during any payment taxable year shall not affect the expenses eligible for reimbursement, or benefit described in-kind benefits to be provided, respectively, 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. taxable year.
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Section 409a.
(a) Anything 24.1 This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of Internal Revenue Code of 1986, as amended (the "Code") and any regulations and Treasury guidance promulgated thereunder ("Section 409A"). If Employer determines in good faith that any provision of this Agreement would cause Employee to incur an additional tax, penalty, or interest under Section 409A, the Committee and Employee shall use reasonable efforts to reform such provision, if possibl...e, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A or causing the imposition of such additional tax, penalty, or interest under Section 409A. The preceding provisions, however, shall not be construed as a guarantee by Employer of any particular tax effect to Employee under this Agreement. John McManus Employment Agreement-August 2022 16 24.2 "Termination of employment," or words of similar import, as used in this Agreement to the contrary notwithstanding, if at the time means, for purposes 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 payments under this Agreement or otherwise on account that are payments 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 409A, Employee's "separation from service" as a result of the application defined in Section 409A. 24.3 For purposes of Section 409A(a)(2)(B)(i) 409A, the right to a series 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 payments under this Agreement shall be provided by the Company treated as a right to a series of separate payments. 24.4 With respect to any reimbursement of Employee's expenses, or incurred by the Executive during the time periods set forth in any provision of in-kind benefits to Employee, as specified under this Agreement. All reimbursements Agreement, such reimbursement of expenses or provision of in-kind benefits shall be paid as soon as administratively practicable, but in no event shall any subject to the following conditions: (1) the expenses eligible for reimbursement be paid after or 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 or the amount of in-kind benefits provided in any other taxable year (except year, except for any lifetime or other aggregate limitation applicable medical reimbursement arrangement providing for the reimbursement of expenses referred to medical expenses). Such in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made pursuant to Employer's reimbursement policy but no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any 24.5 If a payment or benefit described in obligation under this Agreement that constitutes "non-qualified deferred a payment of "deferred compensation" (as defined under Treasury Regulation Section 409A of the Code, and 1.409A-1(b)(1), after giving effect to the extent that such payment or benefit is payable upon the Executive's termination exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) arises on account 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 Employee's separation from service has occurred while Employee is a "specified employee" (as defined under Section 409A), any payment thereof that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be made in accordance with paid within 15 days after the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A end of the Code. To six-month period beginning on the extent that any provision date 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 separation from service or, 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. earlier, within 15 days following Employee's death.
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Section 409a. (a)
Anything in You and the Company agree that this Agreement
shall be interpreted to comply with or be exempt from Section 409A, and the regulations and guidance promulgated thereunder to the
contrary notwithstanding, if at extent applicable, and all provisions of this Agreement shall be construed in a manner consistent with the
time requirements for avoiding taxes or penalties under Section 409A. (b) A termination of
employment shall not be deemed to have occurred for purposes of any provision... of this Agreement providing for the Executive's separation payment of any amounts or benefits considered "nonqualified deferred compensation" under Section 409A upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service." If you are deemed on the Code, the Company determines that the Executive is date of termination 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 is considered nonqualified deferred compensation under this Agreement or otherwise Section 409A payable on account of the Executive's separation a "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, service," such payment shall not be payable and such or benefit shall not be made or provided until at the date that which is the earlier of (A) six months and one day after (a) 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 date of this provision, such "separation from service," and (b) the balance date of your death (the "Delay Period"). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 11(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be payable paid or reimbursed on the first business day following the expiration of the Delay Period to you in accordance with their original schedule. (b) All in-kind a lump sum, and any remaining payments and benefits provided and expenses eligible for reimbursement due under this Agreement shall be paid or provided by in accordance with the normal payment dates specified for them herein. (c) For purposes of Section 409A, your right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. (d) In no event shall the Company or incurred by any of its affiliates have any liability relating 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 failure or alleged failure 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" under to comply with, or be exempt from, the requirements of Section 409A 8. No Conflicting Agreements. You represent and warrant that you are not bound by any employment contract, restrictive covenant or other restriction preventing you from continuing employment with or carrying out your responsibilities for the Company. You agree that you will not disclose or use on behalf of the Code, and to the extent Company any proprietary information of any third party without 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. party's consent.
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