This page contains Section 409a clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Section 409a. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp
...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Variations of a "Section 409a" Clause from Business Contracts
Section 409a.
(a) Anything in this Agreement a.Notwithstanding anything to the contrary
notwithstanding, if at herein, the
time of following provisions apply to the
Executive's separation from service within the meaning of extent severance and other benefits provided herein are subject to Section 409A of the
Code, Code and the
Company determines that regulations and other guidance thereunder and any state law of similar effect (collectively "Section 409A"). Severance benefits shall not commence until Executiv...e has a "separation from service" for purposes of Section 409A. Each installment of severance benefits is a separate "payment" for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not available and Executive is is, upon separation from service, a "specified employee" within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then 409A, then, solely to the extent any payment or benefit that necessary to avoid adverse personal tax consequences under Section 409A, the Executive becomes entitled to under this Agreement or otherwise on account timing of the Executive's separation from service would severance benefits payments shall 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 delayed until the date that is the earlier of (A) (i) six (6) months and one day after the Executive's separation from service, or (B) the (ii) Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, b.If the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for severance benefits are not covered by one or more exemptions from the application of this provision, Section 409A and the balance Release could become effective in the calendar year following the calendar year in which Executive separates from service, the separation agreement will not be deemed effective any earlier than the Release Deadline. None of the installments severance benefits will be paid or otherwise delivered prior to the effective date of the Release. c.All expenses or other reimbursements as provided herein shall be payable in accordance with their original schedule. (b) All in-kind benefits the Company's policies in effect from time to time, provided and expenses eligible for reimbursement under this Agreement that such reimbursements (i) 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 prior to the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided such expenses were incurred by Executive; (ii) no such reimbursement or reimbursable expenses incurred eligible for reimbursement in one any taxable year shall not in any way 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 year; and (iii) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange exchanged for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under d.The severance and other benefits provided herein are intended to qualify for an exemption from application of Section 409A of the Code, and or comply with its requirements to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits necessary to avoid adverse personal tax consequences under Section 409A, and any ambiguities herein 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. interpreted accordingly.
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Section 409a.
(a) Anything It is intended that the payments and benefits provided under the Plan shall be exempt from the application of the requirements of Section 409A of the Code. The Plan shall be construed, administered and governed in
a manner that effects such intent, and the Plan Administrator shall not take any action that would be inconsistent with such intent. Specifically, any taxable benefits or payments provided under this
Agreement Plan are intended to be separate payments that qualify for the ..."short-term deferral" exception to Section 409A of the Code to the contrary notwithstanding, if at maximum extent possible, and to the time extent they do not so qualify, are intended to qualify for the separation pay exceptions to Section 409A of the Executive's Code, to the maximum extent possible. To the extent that none of these exceptions (or any other available exception) applies, then notwithstanding anything contained herein to the contrary, and to the extent required to comply with Section 409A of the Code, if a Participant is a "specified employee," as determined under the Company's policy for identifying specified employees on the date of his or her Qualifying Termination, then all amounts due under the Plan that constitute a "deferral of compensation" within the meaning of Section 409A of the Code, that are provided as a result of a 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 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 be paid or provided during the six-month period but for first six months following the application date of this provision, termination, shall be accumulated through and paid or provided on the balance first business day that is more than six months after the date of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided date of termination (or, if the Participant dies during such six-month period, within 90 days after the Participant's death). With regard to any provision herein that provides for reimbursement of costs and expenses eligible for reimbursement under this Agreement shall be provided or in-kind benefits, except as permitted 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 Section 409A of the taxable year following Code: (i) 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 shall not be subject to liquidation or exchange for another benefit. (c) To benefit; (ii) the extent amount of expenses eligible for reimbursement, or in-kind benefits, provided during any calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; and (iii) such payments shall be made on or before the last day of the Participant's calendar year following the calendar year in which the expense occurred, or such earlier date as required hereunder. The payments and benefits provided under this Plan may not be deferred, accelerated, extended, paid out or modified in a manner that any payment or benefit described would result in this Agreement constitutes "non-qualified deferred compensation" the imposition of an additional tax under Section 409A of the Code, and Code upon Participants. The tax treatment of the benefits provided under this Plan is not warranted or guaranteed to the extent that such payment Participants. Neither the Company, its Affiliates nor their respective directors, officers, employees or benefit is payable upon the Executive's termination of employment, then such payments or benefits advisers shall be payable only upon held liable for any taxes, interest, penalties or other monetary amounts owed by a Participant (or any other individual claiming a benefit through the Executive's "separation from service." The determination of whether and when Participant) as 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 result 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. Plan.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, if at herein, the
time of following provisions apply to the
Executive's separation from service within the meaning of extent severance benefits provided herein are subject to Section 409A of the
Code, Internal Revenue Code (the "Code") and the
Company determines that regulations and other guidance thereunder and any state law of similar effect (collectively "Section 409A"). Severance benefits shall not comme...nce until the Executive has a "separation from service" (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a "separation from service"). Each installment of severance benefits is a separate "payment" for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9). However, if such exemptions are not available and the Executive is, upon separation from service, a "specified employee" within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then 409A, then, solely to the extent any payment or benefit that necessary to avoid adverse personal tax consequences under Section 409A, the Executive becomes entitled to under this Agreement or otherwise on account timing of the Executive's separation from service would severance benefits payments shall 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 delayed until the date that is the earlier of (A) (i) six (6) months and one day after the Executive's separation from service, or (B) (ii) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, The parties acknowledge that 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 exemptions from application of Section 409A to severance benefits are fact specific, and any later amendment of this provision, and Agreement to alter the balance timing, amount or conditions that will trigger payment of severance benefits may preclude the installments shall be payable in accordance with their original schedule. (b) All in-kind ability of severance benefits provided and expenses eligible for reimbursement under this Agreement to qualify for an exemption. (b) It is intended that this Agreement shall comply with the requirements of Section 409A, and any ambiguity contained herein shall be provided by interpreted in such manner so as to avoid adverse personal tax consequences under Section 409A. Notwithstanding the foregoing, the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after obligated to indemnify 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 Executive for any lifetime taxes 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 interest 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 assessed 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 Internal Revenue Service pursuant to Section 409A of the Code to payments made pursuant to this Agreement. 8 EXECUTION COPY 19. SECTION 4999 EXCISE TAX. (a) If any payments, rights or benefits (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of the Executive with the Company or any person affiliated with the Company) (the "Payments") received or to be received by the Executive will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), then, except as set forth in Section 19(b) below, the Company shall pay to the Executive an amount in addition to the Payments (the "Gross-Up Payment") as calculated below. The Gross Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment tax and Excise Tax on the Gross Up Payment, but do not satisfy an exemption from, before deduction for any federal, state or local income and employment tax on the conditions of, Payments, the net amount retained by the Executive shall be equal to the Payments. (b) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 19, including the time period for making the Gross-Up Payment, are set forth in Appendix A attached hereto. For purposes of making the determinations and calculations required herein, the Accounting Firm (as defined in Appendix A) may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, provided that the Accounting Firm shall make such Section. determinations and calculations on the basis of "substantial authority" (within the meaning of Section 6662 of the Code) and the Company shall use reasonable efforts to cause the Accounting Firm to provide opinions to that effect to both the Company and Executive.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time The intent of the
Executive's separation from service within the meaning of Section 409A of the Code, the Company determines parties is 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 and benefits under this Agreement
or otherwise on account comply with Internal Revenue Cod...e Section 409A and the regulations and guidance promulgated thereunder (collectively, "Code Section 409A") and, accordingly, to the maximum extent permitted, this Agreement will be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification will be made in good faith and will, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and the Company of the Executive's separation from service would be considered deferred compensation otherwise subject to applicable provision without violating the 20 percent additional tax imposed pursuant to provisions of Code Section 409A(a) of 409A. To 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 extent that is the earlier of (A) six months and one day after the Executive's separation from service, reimbursements 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 other in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall constitute "nonqualified deferred compensation" for purposes of Code Section 409A, (a) all expenses or other reimbursements hereunder will 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 prior to the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable such expenses were incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in by Executive, (b) any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange exchanges for another benefit. benefit, and (c) To the extent that any payment no such reimbursement, expenses eligible for reimbursement, 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 in-kind benefits provided hereunder without additional cost in any table year will in any way affect the expenses eligible for reimbursement, or in-kind benefits to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or be provided, in 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 6.1 General. To the extent applicable, the Plan shall be interpreted and applied consistent and in
this Agreement accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of the Plan to the
contrary notwithstanding, if at contrary, to the
time extent that the Plan Administrator determines that any payments or benefits under the Plan may not be either compliant with or exempt from ...Section 409A of the Executive's separation Code and related Department of Treasury guidance, the Plan Administrator may in its sole discretion adopt such amendments to the Plan or take such other actions that the Plan Administrator determines are necessary or appropriate to (i) exempt the compensation and benefits payable under the Plan from service within Section 409A of the meaning Code and/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A of the Code, Code and related Department of Treasury guidance; provided, however, that this Section 6.1 shall not create any obligation on the part of the Plan Administrator to adopt any such amendment or take any other action, nor shall the Company determines that have any liability for failing to do so. 6.2 Potential Six-Month Delay. Notwithstanding anything to the Executive is a "specified employee" within contrary in the Plan, no amounts shall be paid to any Participant under the Plan during the six-month period following such Participant's "separation from service" (within the meaning of Section 409A(a)(2)(A)(i) of the Code and Treasury Regulation Section 1.409A-1(h)) to the extent that the Plan Administrator 6 determines that paying such amounts at the time or times indicated in the Plan would result in a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, then to Code. If the extent payment of 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 such amounts is delayed as a result of the application previous sentence, then on the first business day following the end of such six-month period (or such earlier date upon which such amount can be paid under Code Section 409A(a)(2)(B)(i) 409A without resulting in a prohibited distribution, including as a result of the Code, such Participant's death), the Participant shall receive payment shall not be payable and such benefit shall not be provided until of a lump-sum amount equal to 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 cumulative amount that would have otherwise have been paid payable to the Participant during the such six-month period but for without interest thereon. 6.3 Reimbursements. To the application of this provision, and extent that any payments or reimbursements provided to a Participant under the balance of Plan are deemed to constitute compensation to 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 Participant to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid as soon as administratively practicable, or reimbursed reasonably promptly, but in no event shall any reimbursement be paid after the last day not later than December 31st of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred any such payments eligible for reimbursement in one taxable year shall not affect the in-kind benefits to be provided payments or the expenses that are eligible for payment or reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year, and the Participant's right to such payments or reimbursement or in-kind benefits is of any such expenses shall not be subject to liquidation or exchange for another any other benefit. (c) To 6.4 Installments. For purposes of applying the provisions of Section 409A of the Code to the Plan, each separately identified amount to which a Participant is entitled under the Plan shall be treated as a separate payment. In addition, to the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" permissible under Section 409A of the Code, and the right to receive any installment payments under the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits Plan shall be payable only upon the Executive's "separation from service." The determination treated as a right to receive a series of whether separate payments and, accordingly, each such installment payment shall at all times be considered a separate and when a separation from service has occurred shall be made in accordance with the presumptions set forth in distinct payment as permitted under Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will 1.409A-2(b)(2)(iii). Whenever a payment under the 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 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 Notwithstanding any provision to the contrary
notwithstanding, in this Agreement, if
Executive is deemed by the Corporation at the time of
the Executive's separation his Separation from
service within the meaning of Section 409A of the Code, the Company determines that the Executive is Service to be a "specified employee"
within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code,
then to the extent
delayed commencement of any
payment or benefit that p...ortion of the benefits to which Executive becomes is entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject is required in order to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as avoid a result of the application of prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit portion of Executive's benefits shall not be provided until the date that is to Executive prior to 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, and Executive's Separation from Service or (b) the balance date of Executive's death. Upon the first business day following the expiration of the installments applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 4 shall be payable paid in accordance with their original schedule. (b) All in-kind benefits provided a lump sum to Executive, and expenses eligible for reimbursement any remaining payments due under this the 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 otherwise provided herein. For purposes 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 5 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 Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may 1.409A-2(b)(2)(iii)), Executive's right to receive any installment payments payable hereunder shall be amended, treated as reasonably requested by either party, a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. distinct payment.
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Section 409a.
(a) Anything in Notwithstanding the other provisions hereof, this
Amended Agreement
is intended to
comply with the
contrary notwithstanding, requirements of Section 409A. Accordingly, all provisions herein, or incorporated by reference, shall be construed and interpreted to comply with Section 409A and if
at necessary, any such provision shall be deemed amended to comply with Section 409A and the
time regulations thereunder. Further, for purposes of the
Executive's limitations on nonqualified de...ferred compensation under Section 409A, each payment of compensation under this Amended Agreement shall be treated as a separate payment of compensation for purposes of applying the Section 409A deferral election rules and the exclusion from Section 409A for certain short-term deferral amounts, and accordingly, the right to a series of installment payments under this Amended Agreement shall be treated as a right to a series of separate payments. Any amounts payable solely on account of an involuntary separation from service within the meaning of Section 409A of shall be excludible from the Code, the Company determines that the Executive is a "specified employee" within the meaning requirements of Section 409A(a)(2)(B)(i) of the Code, then 409A, either as involuntary separation pay or as short-term deferral amounts to the extent any payment maximum possible extent. Any reimbursements or benefit that the Executive becomes entitled to in-kind benefits provided under this Amended 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 made or provided in accordance with their original schedule. (b) All in-kind benefits provided and the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in this Amended Agreement (or if no such period is specified, during Executive's lifetime), (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement under this Agreement shall of an eligible expense will be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in made no event shall any reimbursement be paid after later than the last day of the taxable calendar year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred, and (iv) the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind in kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a.
(a) Anything in It is intended that this Agreement
to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of will comply with Section 409A of the
Code, Code (and any regulations and guidelines issued thereunder), to the
Company determines that extent the
Executive Agreement is
subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. Notwithstanding any provision to the contrary in this Agreement, if Emp...loyee is deemed on the date of his "separation from service" (within the meaning of Treas. Reg. Section 1.409A-1(h)) to be a "specified employee" within (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i) of the Code, 1.409A-1(i)), then with regard to the extent any payment or benefit that the Executive becomes entitled is required 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 delayed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) 409A(a)(2)(B) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is made prior to the earlier of (A) six months and one day after (i) the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance expiration of the six (6)-month period measured from the date of Employee's "separation from service," or (ii) the date of Employee's death (the "Delay Period"). Upon the expiration of the Delay Period, all payments delayed pursuant to this Section 26 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be payable paid to Employee in accordance with their original schedule. (b) All in-kind benefits provided a lump sum and expenses eligible for reimbursement any remaining payments due under this Agreement shall be provided by paid in accordance with the normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, to the extent required to comply with Section 409A of the Code or an exemption thereto, for purposes of determining Employee's entitlement to any compensation payable upon his termination of employment, Employee's employment will be deemed to have terminated on the date of Employee's "separation from service" (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A of the Code. No action or failure to act, pursuant to this Section 26 shall subject the Company to any claim, liability, or incurred by expense, and the Executive during Company shall not have any obligation to indemnify or otherwise protect Employee from the time periods set forth in this Agreement. All reimbursements obligation to pay any taxes pursuant to Section 409A of the Code. With respect to any reimbursement or in-kind benefit arrangements of the Company that constitute deferred compensation for purposes of Section 409A of the Code, the following conditions shall be applicable: (i) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a limit on the amount that may be reimbursed or paid as soon as administratively practicable, but in no event shall if such limit is imposed on all participants), (ii) any reimbursement must be paid after made on or before the last day of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect 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 reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To benefit.27. Effectiveness. This Agreement shall be effective on the extent that IPO Closing Date (contingent on the closing of such initial public offering and Employee's continued employment with the Company through 10 the IPO Closing Date), and prior to the IPO Closing Date the Prior Employment Agreement shall be unmodified and remain in full force and effect. If the IPO Closing Date does not occur for any payment or benefit described in reason, then 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 null and void, and the Executive's "separation from service." The determination of whether and when a separation from service has occurred Prior Employment Agreement shall be made unmodified and remain 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, full force 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. effect.
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Section 409a.
(a) Anything in All payments to be made upon a termination of employment under this Agreement
to the contrary notwithstanding, if at the time of the Executive's separation will only be made upon a "separation from
service service" within the meaning of Section 409A of the
Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this A...greement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in Code. In no event shall any reimbursement be paid after may Employee, directly or indirectly, designate the last day calendar year of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) payment. To the maximum extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" permitted under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve its corresponding regulations, the payments and cash severance benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to payable under the Executive or any other person if any provisions of this Agreement are determined intended to constitute deferred compensation subject to meet the requirements of the short-term deferral exemption under Section 409A of the Code but do and the "separation pay exception" under Treas. Reg. §1.409A-1(b)(9)(iii). For purposes of the application of Treas. Reg. § 1.409A-1(b)(4) (or any successor provision), each payment in a series of payments to the Employee will be deemed a separate payment. Notwithstanding anything in the Agreement to the contrary or otherwise, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to the Agreement does not satisfy an exemption from, constitute a "deferral of compensation" within the meaning of Section 409A of the Code and its implementing regulations and guidance, (a) the expenses eligible for reimbursement or in-kind benefits provided to the conditions of, such Section. Employee must be incurred during the Term (or applicable survival period), (b) the amount of expenses eligible for reimbursement or in-kind benefits provided to the Employee during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to the Employee in any other calendar year, (c) the reimbursements for expenses for which the Employee is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (d) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.
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Section 409a.
(a) Anything in This Agreement is intended to comply with section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), or an exemption, and the provisions of this Section 10 shall apply notwithstanding any provisions of this Agreement to the
contrary notwithstanding, if at the time contrary. Severance benefits under this Agreement are intended to be exempt from section 409A of the
Executive's separation Code under the "short-term deferral" exception, to the maximum extent applicab...le, and then under the "separation pay" exception, to the maximum extent applicable. All payments to be made upon a termination of employment under this Agreement may only be made upon a "separation from service within service" under section 409A of the meaning Code. For purposes of Section section 409A of the Code, the Company determines that the Executive is right to a "specified employee" within the meaning series 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 payments 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 treated as a right to a series of separate payments and each payment shall be paid treated as soon as administratively practicable, but a separate payment. With respect to any payments that are subject to section 409A of the Code, in no event shall Executive, directly or indirectly, designate the calendar year of a payment. With respect to 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 payments that are 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 section 409A of the Code, and to in no event shall the extent that such timing of Executive's execution of this Agreement, directly or indirectly, result in Executive designating the calendar year of 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 any amount set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered 1 above, and if a payment of any amount set forth in accordance with Section 409A of the Code. To the extent that any provision of this Agreement 1 above is ambiguous as subject 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 section 409A of the Code and all related rules could be made in more than one taxable year, based on timing of the execution of this Agreement, payment shall be made in the later taxable year. Any reimbursements and regulations in order to preserve the payments and in-kind 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 under this Agreement are determined to constitute deferred compensation subject to Section shall be made or provided in accordance with the requirements of section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Code.
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