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 8.1 For purposes of section 409A of the Code, Employee's right to receive installment payments pursuant to this Agreement including, without limitation, each severance payment and COBRA continuation reimbursement shall be treated as a right to receive a series of separate and distinct payments. 8.2 Employee will be deemed to have a date of termination for purposes of determining the timing of any payments or benefits hereunder that are classified as deferred compensation only upo...n a "separation from service" within the meaning of section 409A of the Code. 8.3 Notwithstanding any other provision of this Agreement to the contrary notwithstanding, contrary, if at the time of Employee's separation from service, (i) Employee is a specified employee (within the Executive's meaning of section 409A of the Code and using the identification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable on account of such separation from service within to Employee constitutes deferred compensation (within the meaning of Section section 409A of the Code, Code) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in section 409A of the Code in order to avoid taxes or penalties under section 409A of the Code (the "Delay Period"), then the Company determines that will not pay such amount on the Executive is otherwise scheduled payment date but will instead pay it in a "specified employee" within lump sum on the meaning first business day after such six-month period (or upon Employee's death, if earlier), together with interest for the period of Section 409A(a)(2)(B)(i) delay, compounded annually, equal to the applicable Federal rate for short-term instruments) in effect as of the Code, then to dates the extent any payment or benefit payments should otherwise have been provided. 8.4 (A) Any amount that the Executive becomes Employee is entitled to be reimbursed under this Agreement or otherwise on account of the Executive's separation from service would will be considered deferred compensation otherwise subject reimbursed to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code Employee as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall promptly as practical and in any event 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 later than the last day of the taxable calendar year following after 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 the in-kind benefits to be provided or the expenses eligible for reimbursement in are incurred, (B) 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 will not be subject to liquidation or exchange for another benefit. (c) To benefit, and (C) the extent that amount of the expenses eligible for reimbursement during any taxable year will not affect the amount of expenses eligible for reimbursements in any other taxable year. 8.5 Whenever a payment or benefit described in under this Agreement constitutes "non-qualified deferred compensation" under Section 409A specifies a payment period with reference to a number of the Code, and to the extent that such 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 days (e.g., "payment shall be made in accordance with within thirty (30) days following the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will date of termination"), the actual date of payment within the specified period shall be administered in accordance with Section 409A within the sole discretion of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Company.
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Section 409a.
(a) Anything 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 Participant) as a result of whether and when this Plan. In the event of a separation from service has occurred shall be made in accordance with the presumptions set forth Change of Control which does not constitute a transaction described in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered 1.409A-3(i)(5)(v), (vi) or (vii), the payment schedule applicable to a Qualifying Termination outside of a Change in accordance Control Protection Period shall apply to the extent necessary to comply with the requirements of Code Section 409A of and 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. thereunder.
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Section 409a.
(a) Anything 24.1 This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of Internal Revenue Code of 1986, as amended (the "Code") and any regulations and Treasury guidance promulgated thereunder ("Section 409A"). If Employer determines in good faith that any provision of this Agreement would cause Employee to incur an additional tax, penalty, or interest under Section 409A, the Compensation Committee and Employee shall use reasonable efforts to reform such provisio...n, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A or causing the imposition of such additional tax, penalty, or interest under Section 409A. The preceding provisions, however, shall not be construed as a guarantee by Employer of any particular tax effect to Employee under this Agreement. 24.2 "Termination of employment," or words of similar import, as used in this Agreement to the contrary notwithstanding, if at the time means, for purposes of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to payments under this Agreement or otherwise on account that are payments of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code 409A, Employee's "separation from service" as a result of the application defined in Section 409A. 24.3 For purposes of Section 409A(a)(2)(B)(i) 409A, the right to a series of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement payments under this Agreement shall be provided by the Company treated as a right to a series of separate payments. 24.4 With respect to any reimbursement of Employee's expenses, or incurred by the Executive during the time periods set forth in any provision of in-kind benefits to you, as specified under this Agreement. All reimbursements Agreement, such reimbursement of expenses or provision of in-kind benefits shall be paid as soon as administratively practicable, but in no event shall any subject to the following conditions: (1) the expenses eligible for reimbursement be paid after or the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year (except year, except for any lifetime or other aggregate limitation applicable medical reimbursement arrangement providing for the reimbursement of expenses referred to medical expenses). Such in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made pursuant to Employer's reimbursement policy but no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any 17 24.5 If a payment or benefit described in obligation under this Agreement that constitutes "non-qualified deferred a payment of "deferred compensation" (as defined under Treasury Regulation Section 409A of the Code, and 1.409A-1(b)(1), after giving effect to the extent that such payment or benefit is payable upon the Executive's termination exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) arises on account of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a Employee's separation from service has occurred while Employee is a "specified employee" (as defined under Section 409A), any payment thereof that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be made in accordance with paid within 15 days after the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A end of the Code. To six-month period beginning on the extent that any provision date of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person separation from service or, if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. earlier, within 15 days following your death.
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Section 409a.
(a) Anything in The intent of the Parties is that payments and benefits under this Agreement
to comply with or be exempt from the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning requirements of Section 409A of the
Code, the Company determines that the Executive is a "specified employee" within the meaning Internal Revenue Code of
Section 409A(a)(2)(B)(i) of the Code, then 1986, as amended ("Section 409A"), and accordingly, to the
maximum ext
...ent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under permitted, this Agreement shall be interpreted and administered in accordance with such intention. Without limiting the foregoing, each amount to be paid or benefit to be provided by to you pursuant to this Agreement which constitutes deferred compensation subject to Section 409A, shall be construed as a separate identified payment for the Company purposes of Section 409A. All payments to be made upon a termination of employment under this Agreement may only be made upon a "separation from service" under Section 409A to the extent necessary in order to avoid the imposition of penalty taxes on you pursuant to Section 409A. In no event may you, directly or incurred by indirectly, designate the Executive during calendar year of any payment under this Agreement, and to the extent required to comply with, and avoid the imposition of penalty taxes under, Section 409A, any payment that may be paid in more than one taxable year (depending on the time periods set forth that you execute the release in this Agreement. All reimbursements Section 10 hereof or the Supplemental Release) shall be paid as soon as administratively practicable, but in no event the later taxable year. Notwithstanding anything to the contrary in this Agreement, all reimbursements and in-kind benefits provided under this Agreement that are subject to Section 409A shall be made in accordance with the requirements of Section 409A, including, where applicable, the requirement that (a) any reimbursement is for expenses incurred during your lifetime (or during a shorter period of time specified in this Agreement); (b) 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 paid after provided, in any other calendar year; (C) the reimbursement of an eligible expense will be made no 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 (D) 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 6 14. Counterparts. This Agreement may be amended, executed in counterparts, and each counterpart, when so executed and delivered, shall be deemed to be an original and both counterparts, taken together, shall constitute one and the same Agreement. A faxed or .pdf-ed signature shall operate the same 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. original signature.
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Section 409a.
(a) Anything in For purposes of the rules under Section 409A of the Internal Revenue Code of 1986, as amended ("the Code"), each payment made under this Agreement
shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. It is intended that the payments satisfy, to the
contrary notwithstanding, if at greatest extent possible, the
time exemptions from the application of Section 409A o
...f the Executive's separation from service Code provided under Treasury Regulations 1.409A- l (b)(4), 1.409A-l(b)(9)(iii), and 1.409A-1 (b)(9)(v). In addition, to the extent that any expenses, reimbursement, fringe benefit or other, similar plan or arrangement in which the EXECUTIVE participated during the term of the EXECUTIVE's employment with the COMPANY or thereafter provides for a "deferral of compensation" 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, 409A, 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 amount shall be payable reimbursed in accordance with their original schedule. (b) All in-kind benefits provided and expenses Section 1.409A-3(i)(l )(iv) of the Treasury Regulations, including (i) the amount eligible for reimbursement or payment under this Agreement shall be provided by such plan or arrangement in one calendar year may not affect the Company amount eligible for reimbursement or incurred by the Executive during the payment in any other calendar year, (ii) subject to any shorter time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such plan or arrangement 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 any reimbursement or in-kind benefits benefit is not subject to liquidation or exchange for another benefit. (c) To Notwithstanding any other provision to the extent that contrary, in no event shall any payment or benefit described in under this Agreement that constitutes "non-qualified deferred "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 the Treasury Regulations promulgated thereunder be subject to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or offset by any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to amount unless otherwise permitted by 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 this Agreement to the contrary
notwithstanding, if at the time of the Executive's separation from service within the meaning of notwithstanding: (a) The Company and you intend that all payments and benefits under this Agreement comply with Section 409A of the
Code, Internal Revenue Code and the
Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then regulations promulgated thereunder (collectively "Section 4...09A") and, accordingly, to the maximum extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under permitted, this Agreement shall be provided by interpreted in a manner in compliance therewith. To the extent that any provision hereof is modified in order to comply with Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to you and the Company or incurred by of the Executive during applicable provision without violating the time periods set forth in this Agreement. All reimbursements provisions of Section 409A. (b) No amount shall be paid payable upon a termination of your employment unless such termination constitutes a "separation from service" with the Company under Section 409A. To the maximum extent permitted by applicable law, amounts payable to you pursuant to such Sections herein shall be made in reliance upon the exception for certain involuntary terminations under a separation pay plan or as soon short-term deferral under Section 409A. For purposes of Section 409A, your right to receive installment payments pursuant to this Agreement shall be treated as administratively practicable, but in no event a right to receive a series of separate and distinct payments. (c) To the extent that reimbursements or other in-kind benefits under this Agreement constitute nonqualified deferred compensation, (i) all expenses or other reimbursements hereunder shall any reimbursement be paid after made on or 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 you, (ii) 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) benefit, and (ii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. (d) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" amount payable to you is subject to your entering into a release of claims with the Company and any such amount is a deferral of compensation under Section 409A and which amount could be payable in either of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then two taxable years for you, 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 or commence, as applicable, on January 15 (or any later date within seven (7) days after the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A release becomes irrevocable) 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 such later taxable year and shall be read in such a manner so that include 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 otherwise would 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, been made before such Section. date.
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Section 409a.
(a) Anything This Agreement is intended to comply with or otherwise be exempt from Section 409A and its corresponding regulations, to the extent applicable, and shall be so construed. Notwithstanding anything in this Agreement to the
contrary notwithstanding, if at the time contrary, payments of
the Executive's separation from service within the meaning of "nonqualified deferred compensation" subject to Section 409A
of the Code, the Company determines that the Executive is may only be made under... this Agreement upon an event and in a "specified employee" within the meaning of manner permitted by Section 409A(a)(2)(B)(i) of the Code, then 409A, to the extent any payment or benefit that applicable. For purposes of Section 409A, all payments of "nonqualified deferred compensation" subject to Section 409A to be made upon the Executive becomes entitled to termination of Executive's employment under this Agreement or otherwise on account of the Executive's separation may only be made upon a "separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to service" under Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such 409A. Each 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 made under this Agreement shall be provided by treated as a separate payment and the Company or incurred by the Executive during the time periods set forth in right to a series of installment payments under this Agreement. All reimbursements shall Agreement is to be paid treated as soon as administratively practicable, but in a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment with respect to any amount that is "nonqualified deferred compensation" subject to Section 409A. All reimbursements provided under this Agreement that are "nonqualified deferred compensation" that is subject to Section 409A shall be made or provided in accordance with Section 409A, including, where applicable, the requirements that (a) any reimbursement is for expenses incurred during the Employment Period (or during such other time period specified in this Agreement), (b) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (c) the reimbursement of an eligible expense will be paid after made on or before 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 is 17 incurred, and (d) 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 Nothing herein shall be construed as having modified the extent that time and form of payment of any payment amounts or benefit described in this Agreement constitutes "non-qualified payments of "nonqualified deferred compensation" under within the meaning Section 409A of the Code, and that were otherwise payable pursuant to the extent that such payment or benefit is payable upon terms of any agreement between Company and Executive in effect prior to 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 date of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person 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. Agreement.
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Section 409a.
(a) Anything This Agreement is intended to comply with or otherwise be exempt from Section 409A and its corresponding regulations, to the extent applicable, and shall be so construed. Notwithstanding anything in this Agreement to the
contrary notwithstanding, if at the time contrary, payments of
the Executive's separation from service within the meaning of "nonqualified deferred compensation" subject to Section 409A
of the Code, the Company determines that the Executive is may only be made under... this Agreement upon an event and in a "specified employee" within the meaning of manner permitted by Section 409A(a)(2)(B)(i) of the Code, then 409A, to the extent any payment or benefit that applicable. For purposes of Section 409A, all payments of "nonqualified deferred compensation" subject to Section 409A to be made upon the Executive becomes entitled to termination of Executive's employment under this Agreement or otherwise on account of the Executive's separation may only be made upon a "separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to service" under Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such 409A. Each 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 made under this Agreement shall be provided by treated as a separate payment and the Company or incurred by the Executive during the time periods set forth in right to a series of installment payments under this Agreement. All reimbursements shall Agreement is to be paid treated as soon as administratively practicable, but in a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment with respect to any amount that is "nonqualified deferred compensation" subject to Section 409A. All reimbursements provided under this Agreement that are "nonqualified deferred compensation" that is subject to Section 409A shall be made or provided in accordance with Section 409A, including, where applicable, the requirements that (a) any reimbursement is for expenses incurred during the Employment Period (or during such other time period specified in this Agreement), (b) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (c) the reimbursement of an eligible expense will be paid after made on or before 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 is 16 incurred, and (d) 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 Nothing herein shall be construed as having modified the extent that time and form of payment of any payment amounts or benefit described in this Agreement constitutes "non-qualified payments of "nonqualified deferred compensation" under within the meaning Section 409A of the Code, and that were otherwise payable pursuant to the extent that such payment or benefit is payable upon terms of any agreement between Company and Executive in effect prior to 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 date of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person 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. Agreement.
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Section 409a.
(a) Anything in All severance payments to be made upon a termination of employment under this Agreement
to the contrary notwithstanding, if at the time may be made only upon a "separation of
the Executive's separation from service service" within the meaning of Section 409A of the
Code, Code and the Department of Treasury regulations and other guidance promulgated thereunder. Notwithstanding any provision to the contrary in this Agreement, if Employee is deemed by the Company
determines that at ...the Executive is time of Employee's separation from service to be a "specified employee" within the meaning for purposes of Code Section 409A(a)(2)(B)(i) of the Code, then 401A(a)(2)(B)(i), to the extent delayed commencement of any payment or benefit that portion of the Executive becomes benefits to which Employee is entitled to under this Agreement or otherwise on account is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i), such portion of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit Employee's benefits shall not be provided until the date that is to Employee prior to the earlier of (A) six months and one day after (i) the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provision, and the balance Employee's "separation of the installments shall be payable in accordance service" with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by (ii) the Executive during date of Employee's death. Upon the time periods set forth first business day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 7 shall be paid in this Agreement. All reimbursements a lump sum to Employee, and any remaining payments due under the Agreement 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 Code Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in 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 (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A-2(b)(2)(iii)), Employee's right to receive installment payments under this Agreement may shall be amended, treated as reasonably requested by either party, a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and as may be necessary to fully comply with Section 409A distinct payment. It is intended that none of the Code and all related rules and regulations in order to preserve the severance payments and benefits to be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation will be subject to Section 409A of the Code but do not satisfy an exemption from, and any ambiguities herein will be interpreted to be so exempt. Employee and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A of the conditions of, Code. Notwithstanding anything to the contrary contained herein, to the extent that any amendment to this Agreement with respect to 7 the payment of any severance payments or benefits would constitute under Code Section 409A a delay in a payment or a change in the form of payment, then such Section. amendment must be done in a manner that complies with Code Section 409A(a)(4)(C).
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Section 409a.
(a) Anything in All severance payments to be made upon a termination of employment under this Agreement
to the contrary notwithstanding, if at the time may be made only upon a "separation of
the Executive's separation from service service" within the meaning of Section 409A of the
Code, Code and the Department of Treasury regulations and other guidance promulgated thereunder. Notwithstanding any provision to the contrary in this Agreement, if Employee is deemed by the Company
determines that at ...the Executive is time of Employee's separation from service to be a "specified employee" within the meaning for purposes of Code Section 409A(a)(2)(B)(i) of the Code, then 401A(a)(2)(B)(i), to the extent delayed commencement of any payment or benefit that portion of the Executive becomes benefits to which Employee is entitled to under this Agreement or otherwise on account is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i), such portion of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit Employee's benefits shall not be provided until the date that is to Employee prior to the earlier of (A) six months and one day after (i) the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application date of this provision, and the balance Employee's "separation of the installments shall be payable in accordance service" with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by (ii) the Executive during date of Employee's death. Upon the time periods set forth first business day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section 7 shall be paid in this Agreement. All reimbursements a lump sum to Employee, and any remaining payments due under the Agreement 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 Code Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in 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 (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A-2(b)(2)(iii)), Employee's right to receive installment payments under this Agreement may shall be amended, treated as reasonably requested by either party, a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and as may be necessary to fully comply with Section 409A distinct payment. It is intended that none of the Code and all related rules and regulations in order to preserve the severance payments and benefits to be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation will be subject to Section 409A of the Code but do not satisfy an exemption from, and any ambiguities herein will be 7 interpreted to be so exempt. Employee and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A of the conditions of, Code. Notwithstanding anything to the contrary contained herein, to the extent that any amendment to this Agreement with respect to the payment of any severance payments or benefits would constitute under Code Section 409A a delay in a payment or a change in the form of payment, then such Section. amendment must be done in a manner that complies with Code Section 409A(a)(4)(C).
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