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 Notwithstanding anything contained herein to the contrary, to the extent required in
order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, (i) no amounts shall be paid to Executive under Section 9 of this Agreement
until Executive would be considered to
the contrary notwithstanding, if at the time of the Executive's have incurred a separation from service
from the Company within the meaning of Section 409A of the Code,
the Company determines and (i...i) amounts that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then would otherwise be payable and benefits that would otherwise be provided pursuant to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of during the six-month period immediately following Executive's separation from service would shall instead be considered deferred compensation otherwise subject to paid on 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 first business day after the date that is the earlier of (A) six months and one day after the following Executive's separation from service, service (or death, if earlier). Each amount to be paid 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 benefit to be provided to Executive pursuant to this provision, and the balance of the installments Agreement, which constitutes deferred compensation subject to Section 409A, shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible construed as a separate identified payment for reimbursement purposes of Section 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, amounts reimbursable to Executive under this 7 Agreement shall be provided by the Company paid to Executive on or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after before the last day of the taxable year following the taxable year in which the expense was incurred. The incurred and 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 (and in-kind benefits provided to Executive) during any one year may not effect amounts reimbursable or provided in any other taxable year (except subsequent year; provided, however, that with respect to any reimbursements for any lifetime or other aggregate limitation applicable taxes which Executive would become entitled to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To under the extent that any terms of this Agreement, the 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 reimbursements shall be made in accordance with by 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 Company no later than the end of the Code. To calendar year following the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of calendar year in which Executive remits 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. taxes.
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Section 409a.
(a) Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, in this Agreement, if at the time
of the Executive's
employment terminates, the Executive is a "specified employee," as defined below, any and all amounts payable under this Agreement on account of such separation from service
that would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following the expiration of such ...six (6)-month period or, if earlier, upon the Executive's death; except (A) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (B) benefits that qualify as excepted welfare benefits pursuant to Treasury regulation Section 1.409A-1(a)(5); or (C) other amounts or benefits that are not subject to the requirements of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning Code. For purposes of Section 409A(a)(2)(B)(i) of the Code, then this Agreement, to the extent any payment or benefit that the Executive becomes entitled 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 avoid adverse 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" consequences under Section 409A of the Code, all references to "termination of employment" and correlative phrases shall be construed to require a "separation from service" (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the extent that such presumptions contained therein), and, for purposes of this Agreement, the term "specified employee" means an individual determined by the Company to be a specified employee under Treasury regulation Section 1.409A-1(i). Each payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits made under this Agreement shall be payable only upon treated as a separate payment and the Executive's "separation from service." The determination right to a series 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 installment payments under this Agreement is ambiguous to be treated as a right to a series of separate payments. In no event shall the Company or any of 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 affiliates have no any liability to the Executive or any other person if relating to the failure or alleged failure of any provisions of payment or benefit under this Agreement are determined to constitute deferred compensation subject to comply with, or be exempt from, 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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Section 409a.
(a) Anything in 16.1 Purpose. This section is intended to help ensure that compensation paid or delivered to you pursuant to this Agreement
to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of either is paid in compliance with, or is exempt from, Section 409A of the
Code, Code and the rules and regulations promulgated thereunder (collectively, "Section 409A"). However, the Company
determines does not warrant that all compensation paid o...r delivered to you will be exempt from, or paid in compliance with, Section 409A. 16.2 Interpretation. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the Executive is payments and benefits set forth herein shall either be exempt from the requirements of Section 409A, or shall comply with the requirements of Section 409A, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be exempt from or in compliance with Section 409A. For purposes of the application of Section 409A, each payment under this Agreement (including any installment payments) shall be deemed a separate payment. 16.3 Amounts Payable On Account of Termination. For the purposes of determining when amounts otherwise payable on account of your termination of employment under this Agreement will be paid, which amounts become due because of your termination of employment, "termination of employment" or words of similar import, as used in this Agreement, shall be construed as the date that you first incur a "separation from service" for purposes of Section 409A on or following termination of employment. Notwithstanding any provision in this Agreement or elsewhere to the contrary, if on your Date of Termination you are deemed to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A, any payments or benefits due upon a termination of your employment under any arrangement that constitute a "deferral of compensation" within the Code, then to the extent any payment or benefit that the Executive becomes entitled to meaning of Section 409A (whether under this Agreement Agreement, any other plan, program, payroll practice or any equity grant) and which do not otherwise qualify under the exemptions under Treas. Reg. § 1.409A-1 (including, without limitation, the short-term deferral exemption and the permitted payments under Treas. Reg. § 1.409A-1(b)(9)(iii)), shall be delayed and paid or provided to you in a lump sum (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) 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) (i) the date which is six (6) months and one (1) day after the Executive's separation your "separation from service, or (B) the Executive's death. If any service" (as such delayed cash payment term 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 defined in Section 409A of the installments Code) for any reason other than death, and (ii) the date of your death, and any remaining payments and benefits shall be payable paid or provided in accordance with their original schedule. (b) All in-kind benefits provided and the normal payment dates specified for such payment or benefit. 13 16.4 Reimbursements. To the extent required by Section 409A, (i) the amount of expenses eligible for reimbursement under this Agreement or in-kind benefits provided to you during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to you in any other calendar year, (ii) the reimbursements for expenses for which you are entitled to be reimbursed shall be provided by the Company made on or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after before the last day of the taxable calendar year following the taxable calendar year in which the applicable expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred, and (iii) the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to payment or reimbursement or in-kind benefits is hereunder may not subject to liquidation be liquidated 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 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. benefit.
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Section 409a.
(a) Anything Notwithstanding anything contained herein to the contrary, to the extent required in
order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, (i) no amounts shall be paid to Executive under Section 9 of this Agreement
until Executive would be considered to
the contrary notwithstanding, if at the time of the Executive's have incurred a separation from service
from the Company within the meaning of Section 409A of the Code,
the Company determines and (i...i) amounts that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then would otherwise be payable and benefits that would otherwise be provided pursuant to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of during the six-month period immediately following Executive's separation from service would shall instead be considered deferred compensation otherwise subject to paid on 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 first business day after the date that is the earlier of (A) six months and one day after the following Executive's separation from service, service (or death, if earlier). Each amount to be paid 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 benefit to be provided to Executive pursuant to this provision, and the balance of the installments Agreement, which constitutes deferred compensation subject to Section 409A, shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible construed as a separate identified payment for reimbursement purposes of Section 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, amounts reimbursable to Executive under this Agreement shall be provided by the Company paid to Executive on or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after before the last day of the taxable year following the taxable year in which the expense was incurred. The incurred and 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 (and in-kind benefits provided to Executive) during any one year may not effect amounts reimbursable or provided in any other taxable year (except subsequent year; provided, however, that with respect to any reimbursements for any lifetime or other aggregate limitation applicable taxes which Executive would become entitled to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To under the extent that any terms of this Agreement, the 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 8 reimbursements shall be made in accordance with by 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 Company no later than the end of the Code. To calendar year following the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of calendar year in which Executive remits 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. taxes.
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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 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 this Agreement 10.1 Notwithstanding anything to the contrary
notwithstanding, if at in the
time of Plan, no Deferred Compensation Separation Benefits (as defined below) or other severance benefits that are exempt from Section 409A (as defined below) pursuant to Treasury Regulation Section 1.409A-1(b)(9) will become payable until the
Executive's separation Covered Employee has a "separation from
service service" within the meaning of Section 409A of the
Code, Code and the
Company ...determines that final regulations and any guidance promulgated thereunder ("Section 409A"). Further, if the Executive Covered Employee is subject to Section 409A and is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's Covered Employee's separation from service would be considered deferred compensation (other than due to death), then any Deferred Compensation Separation Benefits otherwise subject due to the 20 percent additional tax imposed pursuant to Section 409A(a) of Covered Employee on or within the Code as six (6) month period following his or her separation from service will accrue during such six (6) month period and will become payable in a result of the application of Section 409A(a)(2)(B)(i) of the Code, such lump sum payment shall not be payable and such benefit shall not be provided until (less applicable withholding taxes) on the date that is the earlier of (A) six (6) months and one (1) day after following the Executive's date of the Covered Employee's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application service. All subsequent payments of this provision, and the balance of the installments shall Deferred Compensation Separation Benefits, if any, will be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if the Covered Employee dies following his or her separation from service but prior to the six (6) month anniversary of his or her date of separation, then any payments delayed in accordance with this Agreement shall paragraph will be provided by payable in a lump sum (less applicable withholding taxes) to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid Covered Employee's estate as soon as administratively practicable, but in no event shall any reimbursement be paid practicable after the last day date of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided his 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 her death and all other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall Deferred Compensation Separation Benefits will be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A payment schedule applicable to each payment or benefit. For purposes of the Code. To Plan, "Deferred Compensation Separation Benefits" will mean the extent that severance payments or benefits payable to the Covered Employee, if any, pursuant to the Plan that, when considered together with any provision of this Agreement other severance payments or separation benefits, is ambiguous as to its compliance with considered deferred compensation under 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. 409A. 10.2 Each payment pursuant to this Agreement or and benefit payable under the Restrictive Covenants Agreement Plan is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulation Regulations. Any severance payment that satisfies the requirements of the "short-term deferral" rule set forth in Section 1.409A-2(b)(2). The parties agree 1.409A-1(b)(4) of the Treasury Regulations shall not constitute a Deferred Compensation Separation Benefit. Any severance payment that entitles the Covered Employee to taxable reimbursements or taxable in-kind benefits covered by Section 1.409A-1(b)(9)(v) shall not constitute a Deferred Compensation Separation Benefit. Any severance payment or portion thereof that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit shall not constitute a Deferred Compensation Separation Benefit. 10.3 It is the intent of this Agreement may Plan to comply with or be amended, exempt from the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. Notwithstanding anything to the contrary in the Plan, including but not limited to Section 14, the Company reserves the right to amend the Plan as reasonably requested by either party, it deems necessary or advisable, in its sole discretion and as may be necessary without the consent of the Covered Employees, to fully comply with Section 409A of the Code and all related rules and regulations in order or 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 otherwise avoid income recognition under Section 409A of the Code but do not satisfy an exemption from, prior to the actual payment of Severance Benefits or Change in Control Severance Benefits or imposition of any additional tax (provided that no such amendment shall materially reduce the conditions of, such Section. benefits provided hereunder).
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Section 409a.
(a) Anything in The amounts payable pursuant to this Agreement
are intended to
the contrary notwithstanding, if at the time of the Executive's separation be exempt from
service within the meaning of Section section 409A of the Code,
and related U.S. treasury regulations or official pronouncements ("Section 409A") and will be construed in a manner that is compliant with such exemption; provided, however, if and to the extent that any compensation payable under this Agreement is determined to be s...ubject to Section 409A, this Agreement will be construed in a manner that will comply with Section 409A, and provided further, however, that no person connected with this Agreement in any capacity, including but not limited to the Company determines and its affiliates, and their respective directors, officers, agents and employees, makes any representation, commitment or guarantee that any tax treatment, including but not limited to, federal, state and local income, estate and gift tax treatment, will be applicable with respect to any amounts payable or benefits provided under this Agreement. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed on his Termination Date or expiration of the Term to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, 409A, then to the extent any payment or benefit that the Executive becomes entitled to payments and benefits under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise that are subject to Section 409A and paid by reason of a termination of employment will be made or provided on the 20 percent additional tax imposed pursuant to Section 409A(a) later of (a) the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until date set forth in this Agreement or (b) the date that is the earlier earliest of (A) six months and one day after (i) the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but measured from the Termination Date or expiration of the Term, or (ii) the date of Executive's death (the "Delay Period"). Payments and benefits subject to the Delay Period will be paid or provided to Executive without interest for such delay. The terms "termination of employment" and "separate from service" as used throughout this Agreement refer to a "separation from service" within the application meaning of Section 409A. -9- 11. Maximum Payments by the Company. Notwithstanding anything to the contrary in this provision, Agreement, if Executive is a "disqualified individual" (as defined in section 280G(c) of the Code), and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind payments and benefits provided for in this Agreement, together with any other payments and expenses eligible for reimbursement under this Agreement shall be provided by benefits which Executive has the right to receive from the Company or incurred by any of its affiliates, would constitute a "parachute payment" (as defined in section 280G(b)(2) of the Executive during Code), then the time periods set forth payments and benefits provided for in this Agreement. All reimbursements shall Agreement will be paid as soon as administratively practicable, but either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and its affiliates will be one dollar ($1.00) less than three times Executive's "base amount" (as defined in no event shall any reimbursement be paid after the last day section 280G(b)(3) of the taxable year following Code) and so that no portion of such amounts and benefits received by Executive will be subject to the taxable year excise tax imposed by section 4999 of the Code, or (b) paid in which full, whichever produces the expense was incurred. better net after-tax position to Executive (taking into account any applicable excise tax under section 4999 of the Code and any other applicable taxes). The amount reduction of in-kind payments and benefits provided hereunder, if applicable, will be made by reducing, first, payments or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or paid in cash hereunder in the expenses eligible for reimbursement order 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 which such payment or benefit is payable upon would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the Executive's termination of employment, then extent necessary, through to such payments payment or benefits shall benefit that would be payable only upon the Executive's "separation from service." made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. 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 whether any such reduction in the amount 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 is necessary will be made by the Company makes no representation in good faith. If a reduced payment or warranty benefit is made or provided, and shall have no liability through error or otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a "parachute payment" exists, exceeds one dollar ($1.00) less than three times Executive's base amount, then Executive will immediately repay such excess to the Executive Company upon notification that an overpayment has been made. Nothing in this Section 11 requires the Company to be responsible for, or have any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A liability or obligation with respect to, Executive's excise tax liabilities under section 4999 of the Code but do not satisfy an exemption from, or the conditions of, such Section. Code.
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Section 409a.
(a) Anything in It is intended that all of the severance benefits and other payments payable under this Agreement
satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations Sections 1.409A1(b)(4), 1.409A1(b)(5) and 1.409A1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent no so exempt, this Agreement (and any definitions hereunder) will be c...onstrued in a manner that complies with Section 409A. For all purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulations Sections 1.409A2(b)(2)(i) and (iii)), your right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as 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 notwithstanding, in this Agreement, if you are deemed by the Company at the time of the Executive's separation your 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 Code Section 409A(a)(2)(B)(i) 409A(a)(2)(B)(i), and if any of the Code, 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 payment or benefit that portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the Executive becomes entitled related adverse taxation under Section 409A, such payments shall not be provided to under this Agreement or otherwise on account you prior to the earliest of (i) the first date following expiration of the Executive's separation six-month period following the date of your Separation from service would be considered Service with the Company, (ii) the date of your 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 compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of this Paragraph shall be paid in a lump sum to you, and any remaining payments due shall be paid as otherwise provided herein or in the Code as a result of applicable 5 agreement. No interest shall be due on any amounts so deferred. If the severance benefits are not covered by one or more exemptions from 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, 409A and the balance of Release Deadline occurs in 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 calendar year following the taxable calendar year in which of your Separation from Service, the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall Release will not affect be deemed effective any earlier than 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 Release Deadline 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 determining the timing 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 provision of any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. severance benefits.
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Section 409a.
(a) Anything in The intent of the parties is that payments and benefits under this Agreement
comply with section 409A of the Code to the
contrary notwithstanding, if at extent subject thereto or be exempt therefrom, and, accordingly, to the
time maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required to avoid the application of an accelerated or additional tax u...nder Section 409A of the Executive's separation Code, the Executive shall not be considered to have terminated 6 employment with the Company for purposes of this Agreement until such time as the Executive is considered to have incurred a "separation from service service" from the Company 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 Code. Each amount to the extent any payment be paid or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid construed as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day a separately identified payment 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 Section 409A of the Code, and to any payments that are due within 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 "short term deferral period" 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 defined 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 not be treated as deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. unless applicable law requires otherwise.
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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 Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Code Section 409A of the Code, provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this letter will be construed to the greatest extent that such payment or benefit is payable upon the Executive's termination possible as consistent with those provisions. For purposes 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 Code 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 (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A-2(b)(2)(iii)), your right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) will be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder will at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if you are deemed by either party, the Company at the time of your 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 will not be provided to you prior to the earliest of (i) the expiration of the six-month period measured from the date of your Separation from Service with the Company, (ii) the date of your 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 will be paid in a lump sum to you, and any remaining payments due will be paid as otherwise provided herein or in the applicable agreement. No interest will be due on any amounts so deferred. Notwithstanding any other provision herein to the contrary, in the event of any ambiguity in the terms of this Agreement, such term(s) will be interpreted and at all times administered in a manner that avoids the inclusion of compensation in income under Section 409A, or the payment of increased taxes, excise taxes or other penalties under Section 409A. The parties intend all payments and benefits provided hereunder without additional cost to either party. (e) The be in compliance with Section 409A; however, you acknowledge and agree that the Company makes no representation does not guarantee the tax treatment or warranty and shall have no liability tax consequences associated with any payment or benefit arising under this Agreement, including but not limited to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject consequences related to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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