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.
View More
Variations of a "Section 409a" Clause from Business Contracts
Section 409a. (a)
Anything in this This Agreement
and the payments and benefits provided hereunder are intended to
be exempt from, or comply with, the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning requirements of Section 409A of the
Code, Internal Revenue Code of 1986, as amended (the "Code"), and shall be construed consistently with that intent. Notwithstanding the foregoing, in no event shall the Company
determines that the Executive is a "specified e...mployee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then have any liability relating to the extent failure or alleged failure of any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code 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 exempt from, or comply with, 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 requirements 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 made under this Agreement or the Restrictive Covenants Agreement is intended to constitute shall be treated as a separate payment for purposes and the right to a series of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that installment payments under this Agreement may shall be amended, treated as reasonably requested by either party, and as may be necessary a right to fully comply with Section 409A a series of the Code and all related rules and regulations in order separate payments. (b) Any reimbursement for expenses payable to preserve the payments and benefits provided you 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 that would constitute nonqualified deferred compensation subject to Section 409A of the Code shall be subject to the following additional rules: (i) no reimbursement of any such expense shall affect your right to reimbursement of any such expense in any other taxable year; (ii) reimbursement of the expense shall be made, if at all, promptly, but not later than the end of the calendar year following the calendar year in which the expense was incurred; and (iii) the right to reimbursement shall not be subject to liquidation or exchange for any other benefit. (c) If you are a "specified employee" (as defined below) at the time of your "separation from service" (as defined below), any payments or benefits that are payable under this Agreement or otherwise on account of your separation from service that would (but for this provision) be payable within six (6) months following the date of such separation from service, shall instead be paid on the next business day following the expiration of such six (6)-month period or, if earlier, upon your death; except (i) to the extent of amounts that do not satisfy constitute a deferral of 8 compensation within the meaning of Section 1.409A-1(b) of the Treasury Regulations (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); (ii) benefits which qualify as excepted welfare benefits pursuant to Section 1.409A-1(a)(5) of the Treasury Regulations; or (iii) other amounts or benefits that are not subject to the requirements of Section 409A of the Code. (d) For purposes of this Agreement, the term "separation from service" shall have the meaning set forth in Section 1.409A-1(h) of the Treasury Regulations (after giving effect to the presumptions contained therein), and the term "specified employee" means an exemption from, or individual determined by the conditions of, such Section. Company to be a specified employee under Section 1.409A-1(i) of the Treasury Regulations.
View More
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-1(b)(4), 1.409A-1(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)(1)(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.
View More
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 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and such benefit shall not be provided until the date that is the earlier of (A) six months 1.409A-1(b)(9), and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall will be provided by construed to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid greatest extent possible as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, consistent with those provisions, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that not so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with 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 any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if Employee is deemed by either party, the Company at the time of Employee's Separation from Service to be a "specified employee" for purposes of 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 Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability Employee prior to the Executive earliest of (i) the expiration of the six-month period measured from the date of Employee's Separation from Service with the Company, (ii) the date of Employee's death or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Code but do not satisfy an exemption from, first business day following the expiration of such time period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Employee, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Section. applicable agreement. No interest shall be due on any amounts so deferred.
View More
Section 409a. (a)
Anything in Notwithstanding anything herein to the contrary, this Agreement
is intended to
be interpreted and applied so that the
contrary notwithstanding, if at the time payment of the
Executive's separation benefits set forth herein shall either be exempt from
service within the
meaning requirements of Section 409A of the
Code, Code ("Section 409A") or shall comply with the
Company determines that requirements of such provision. - 4 - (b) Notwithstanding any provision of this Agreement to ...the contrary, if Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A, any payments or arrangements due upon a termination of Executive's employment under any arrangement that constitutes a "nonqualified deferral of compensation" within the Code, then meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), shall be delayed and paid or provided, without interest, on the earlier of (i) the date which is six months after Executive's "separation from service" (as such term is defined in Section 409A and the regulations and other published guidance thereunder) for any reason other than death, and (ii) the date of Executive's death. (c) After any Termination Date, Executive shall have no duties or responsibilities that are inconsistent with having a "separation from service" within the meaning of Section 409A and, notwithstanding anything in the Agreement to the extent any contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a "separation from service" as determined under Section 409A and such date shall be the Termination Date for purposes of this Agreement. Each payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid treated as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with which constitutes a "nonqualified deferral of compensation" within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid shall be in the discretion 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.
View More
Section 409a.
(a) Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, in this Agreement, 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) 409A of the
Code, Internal Revenue Code of 1986, as amended (the "Code") or any final regulations and guidance promulgated thereunder ("Section 409A") at the time of Execu...tive's termination, then to the extent any payment or benefit only that the Executive becomes entitled to under this Agreement or otherwise on account portion of the Executive's severance and benefits payable to Executive pursuant to this Agreement, if any, and any other severance payments or separation from service would benefits which may be considered deferred compensation otherwise subject under Section 409A (together, the "Deferred Compensation Separation Benefits"), which (when considered together) do not exceed the Section 409A Limit (as defined herein) may be made within the first six (6) months following Executive's termination of employment in accordance with the payment schedule applicable to the 20 percent additional tax imposed pursuant to Section 409A(a) each payment or benefit. For these purposes, each severance payment is hereby designated as a separate payment and will not collectively be treated as a single payment. Any portion of the Code as a result Deferred Compensation Separation Benefits in excess of the application of Section 409A(a)(2)(B)(i) of 409A Limit otherwise due to Executive on or within the Code, six (6) month period following Executive's termination will accrue during such six (6) month period and will become payable in a lump sum payment shall not be payable and such benefit shall not be provided until on the date that is the earlier of (A) six (6) months and one (1) day after following the date of 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 termination of this provision, and the balance of the installments shall employment. All subsequent 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 Executive dies following termination but prior to the six (6) month anniversary of Executive's date of termination, then any payments delayed in accordance with this Agreement shall paragraph will be provided by the Company or incurred by the Executive during the time periods set forth payable in this Agreement. All reimbursements shall be paid a lump sum as soon as administratively practicable, but in no event shall any reimbursement be paid practicable after the last day date of Executive's death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. It is the intent of this Agreement to comply with the requirements of Section 409A so that none 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 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. The Company and Executive 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 Executive under Section 409A. For purposes of this Agreement, "Section 409A Limit" will mean the expenses eligible for reimbursement in any other lesser of two (2) times: (i) Executive's annualized compensation based upon the annual rate of pay paid to Executive during the Company's 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 preceding the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A Company's taxable year 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 employment as determined under Treasury Regulation Section 1.409A-1(h). (d) The parties intend 1.409A-1(b)(9)(iii)(A)(1) and any IRS guidance issued with respect thereto; or (ii) the maximum amount that this Agreement will may 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 taken into account under a manner so that all payments hereunder comply with Section 409A of the Code. Each payment qualified plan 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 401(a)(17) of the Code and all related rules and regulations for the year 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. which Executive's employment is terminated.
View More
Section 409a.
(a) Anything a. To the extent (i) any payments to which you become entitled under this Employment Agreement, or any agreement or plan referenced herein, in
this Agreement connection with your termination of employment with Cepheid constitute deferred compensation subject to
Section 409A of the
contrary notwithstanding, if Code and (ii) you are deemed at the time of
such termination of employment to be a "specified" employee under Section 409A of the
Executive's Code, then, notwithstanding anythi...ng herein to the contrary, such payment or payments shall not be made or commence until the earlier of (A) the expiration of the six (6)-month period measured from the date of your "separation from service" (as such term is at the time defined in regulations under Section 409A of the Code) with Cepheid; or (B) the date of your death following such separation from service within service; provided, however, that such deferral shall only be effected to the meaning extent required to avoid adverse tax treatment to you, including (without limitation) the additional twenty (20%) percent tax for which you would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). b. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Employment Agreement (or otherwise referenced herein) is determined to be subject to (and not exempt from) Section 409A of the Code, the Company determines that amount of any such expenses eligible for reimbursement, or the Executive is a "specified employee" within the meaning provision 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 in-kind benefit, in one calendar year shall not be payable and such benefit shall not be provided until affect 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 or in kind benefits to be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but any other calendar year, in no event shall any reimbursement expenses be paid reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses you incurred such expenses, and in one taxable year no event shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. 6 c. To the extent that any provision of this Employment Agreement is ambiguous as to its exemption or compliance with Section 409A of the Code, 409A, the provision shall will be read in such a manner so that all payments hereunder are exempt from Section 409A to the maximum permissible extent, and for any payments where such construction is not tenable, that those payments comply with Section 409A to the maximum permissible extent. To the extent any payment under this Employment Agreement may be classified as a "short-term deferral" within the meaning of the Code. Each Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. d. Payments pursuant to this Employment Agreement or the Restrictive Covenants Agreement is (or referenced in this Employment Agreement) are intended to constitute a separate payment payments 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 1.409A-2(b)(2) 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 under Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
View More
Section 409a.
6.1 General. To the extent applicable, the Plan shall be interpreted and applied consistent and in accordance with Code Section 409A and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of the Plan to the contrary, to the extent that the Administrator determines that any payments or benefits under the Plan may not be either compliant with or exempt from Code Section 409A and related Department of Treasury guidance, the Administra...tor may in its sole discretion adopt such amendments to the Plan or take such other actions that the Administrator determines are necessary or appropriate to (a) Anything in exempt the compensation and benefits payable under the Plan from Code Section 409A and/or preserve the intended tax treatment of such compensation and benefits, or (b) comply with the requirements of Code Section 409A and related Department of Treasury guidance; provided, however, that this Agreement Section 6.1 shall not create any obligation on the part of the Administrator to adopt any such amendment or take any other action, nor shall the Company have any liability for failing to do so. 6.2 Potential Six-Month Delay. Notwithstanding anything to the contrary notwithstanding, if in the Plan, no amounts shall be paid to any Participant under the Plan during the six (6)-month period following such Participant's "separation from service" (within the meaning of Code Section 409A(a)(2)(A)(i) and Treasury Regulation Section 1.409A-1(h)) to the extent that the Administrator determines that paying such amounts at the time or times indicated in the Plan would result in a prohibited distribution under Code Section 409A(a)(2)(B)(i). If the payment of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive any such amounts 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 delayed as a result of the application previous sentence, then on the first business day following the end of such six (6)-month period (or such earlier date upon which such amount can be paid under Code Section 409A(a)(2)(B)(i) 409A without resulting in a prohibited distribution, including as a result of the Code, Participant's death), the Participant shall receive payment of a lump-sum amount equal to the cumulative amount that would have otherwise been payable to the Participant during such payment six (6)-month period without interest thereon. 6.3 Separation from Service. A termination of employment shall not be payable and deemed to have occurred for purposes of any provision of the Plan providing for the payment of any amounts or benefits that constitute "nonqualified deferred compensation" under Code Section 409A upon or following a termination of employment unless such benefit shall not be provided until termination is also a "separation from service" within the date that is the earlier meaning of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If Code Section 409A and, for purposes of 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 provision of the installments Plan, references to a "termination," "termination of employment" or like terms shall be payable in accordance with their original schedule. (b) All in-kind benefits mean "separation from service". 6.4 Reimbursements. To the extent that any payments or reimbursements provided and expenses eligible for reimbursement to a Participant under this Agreement shall be provided by the Company or incurred by Plan are deemed to constitute compensation to the Executive during the time periods set forth in this Agreement. All reimbursements Participant to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid as soon as administratively practicable, or reimbursed reasonably promptly, but in no event shall any reimbursement be paid after the last day not later than December 31st of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred any such payments eligible for reimbursement in one taxable (1) year shall not affect the in-kind benefits to be provided payments or the expenses that are eligible for payment or reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year, and the Participant's right to such payments or reimbursement or in-kind benefits is of any such expenses shall not be subject to liquidation or exchange for another any other benefit. (c) To 6.5 Installments. For purposes of applying the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under provisions of Code Section 409A of to the Code, and Plan, each separately identified amount to which a Participant is entitled under the Plan shall be treated as a separate payment. In addition, to the extent that such payment or benefit is payable upon permissible under Code Section 409A, the Executive's termination of employment, then such right to receive any installment payments or benefits under the Plan shall be payable only upon the Executive's "separation from service." The determination treated as a right to receive a series of whether separate payments and, accordingly, each such installment payment shall at all times be considered a separate and when a separation from service has occurred shall be made in accordance with the presumptions set forth in distinct payment as permitted under Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will 1.409A-2(b)(2)(iii). Whenever a payment under the Plan specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be administered in accordance with Section 409A within the sole discretion of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Company.
View More
Section 409a.
(a) Anything This Agreement is intended to comply with Section 409A, including the exceptions thereto, and shall be construed and administered in
accordance with such intent. Notwithstanding any other provision of this Agreement, payments provided under this Agreement
may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary sepa...ration from service, as a short-term deferral, or as a settlement payment pursuant to a bona fide legal dispute shall be excluded from Section 409A to the contrary notwithstanding, if at maximum extent possible. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate and distinct payment for purposes of Section 409A. Without limiting the time foregoing and notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A: (i) you shall not be considered to have terminated employment with the Employer for purposes of any payments under this Agreement which are subject to Section 409A until you would be considered to have incurred a "separation from service" from the Executive's separation from service Company within the meaning of Section 409A of the Code, the Company determines 409A; (ii) 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 any other arrangement between you and the Executive's Company during the six (6) month period immediately following your 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 (6) months and one day after the Executive's following your separation from service, or (B) service (or, if earlier, your date of death); (iii) to 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 extent required to avoid taxation and/or tax penalties under Section 409A, 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 reimbursable to you under this Agreement shall be provided by the Company paid to you 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 the Employee) during one year may not affect amounts reimbursable or provided in any other taxable year (except for subsequent year; and (iv) if any lifetime severance amount payable under a plan or other aggregate limitation applicable agreement that you may have a right or entitlement to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To as of the extent that any payment or benefit described in date of this Agreement constitutes "non-qualified deferred compensation" compensation under Section 409A 409A, then the portion of the Code, and benefits payable hereunder equal to such other amount shall instead be provided in 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 form 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 other plan 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) agreement. The Company makes no representation that any or warranty and shall have no liability to all of the Executive or any other person if any provisions of payments described in this Agreement are determined to constitute deferred compensation subject to will be exempt from or comply with Section 409A and makes no undertaking to preclude Section 409A from applying to any such payment. You understand and agree that you shall be solely responsible for the payment 5 of the Code but do not satisfy an exemption from, any taxes, penalties, interest or the conditions of, such Section. other expenses you may incur on account of non-compliance with Section 409A.
View More
Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, if at the time of the Executive's separation in this Agreement, no Deferred Compensation Separation Benefits payable under this Agreement will be considered due or payable until and unless Executive has a "separation from
service service" within the meaning of Section 409A of the
Code, U.S. Internal Revenue Code of 1986, as amended and the
Company determines that final regulations and any guidance promulgate...d under Section 409A, as each may be amended from time to time (together, "Section 409A"). Notwithstanding anything to the contrary in this Agreement, if Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of the Code, Executive's "separation from service" other than due to Executive's death, then any severance benefits payable pursuant to the extent any payment or benefit that the Executive becomes entitled to under this Agreement and any other severance payments or otherwise on account of the Executive's separation from service would benefits, that in each case or when considered together may be considered deferred compensation under Section 409A (together, the "Deferred Compensation Separation Benefits") and are otherwise subject due to Executive on or within the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as six (6) month period following Executive's "separation from service" will accrue during such six (6) month period and will instead 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 on the date that is the earlier of (A) six (6) months and one (1) day after following the date of Executive's separation "separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall service." All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with their original schedule. (b) All in-kind benefits provided the payment schedule applicable to each payment or benefit. Each payment and expenses eligible for reimbursement benefit payable 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 payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulation Regulations. (b) Notwithstanding anything herein to the contrary, if Executive dies following his "separation from service" but prior to the six (6) month anniversary of the date of his "separation from service," then any Deferred Compensation Separation Benefits delayed in accordance with this Section 1.409A-2(b)(2). The parties agree that will be payable in a lump sum as soon as administratively practicable after the date of Executive's death, but not later than ninety (90) days after the date of Executive's death, and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit (c) It is the intent of this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with the requirements of Section 409A so 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 under this Agreement will be subject to the additional cost tax imposed under Section 409A, and any ambiguities in this Agreement will be interpreted to either party. (e) so comply. The Company makes no representation or warranty and shall have no liability Executive agree to the Executive or any other person if any provisions of work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are determined necessary, appropriate or desirable to constitute deferred compensation subject to avoid imposition of any additional tax or income recognition under Section 409A prior to actual payment to Executive. (d) Receipt of the Code but do not satisfy an exemption from, severance payments and benefits specified in Section 9 shall be contingent on Executive's execution of the Release, the lapse of any statutory period for revocation, and such Release becoming effective in accordance with its terms within fifty-two (52) days following the termination date. Any severance payment to which Executive otherwise would have been entitled during such fifty-two (52) day period shall be paid by the Company in cash and in full arrears on the fifty-third (53rd) day following Executive's employment termination date or such later date as is required to avoid the conditions of, such Section. imposition of additional taxes under Section 409A.
View More
Section 409a.
(a) Anything The Executive understands, acknowledges and agrees that any amounts payable under this Agreement are intended to be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and treasury regulations relating thereto, so as not to subject the Executive to the payment of any interest and tax penalty which may be imposed under Section 409A of the Code, and Agreement shall be interpreted and construed accordingly; provided, however, that the ...Company and the other Released Parties shall not be responsible for any taxes, penalties, interest or other losses or expenses incurred by the Executive due to any failure to be exempt from or to comply with Section 409A of the Code. In furtherance thereof, the terms of this Agreement, to the extent necessary, may be modified to be exempt from and so comply with Section 409A of the Code. All references in this Agreement to the contrary notwithstanding, if at the time Executive's separation or termination of the Executive's his employment shall mean a separation from service within the meaning of Section 409A of the Code, Code. Each payment under 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) separation 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 service 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 considered 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. Code.
View More
