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 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 either 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.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time It is intended that all of the
Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to severance benefits and other payments payable under this Agreement
or otherwise on account of the... Executive's separation from service would be considered deferred compensation otherwise subject satisfy, to the 20 percent additional tax imposed pursuant to Section 409A(a) of greatest extent possible, the Code as a result of exemptions from the application of Code Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable 409A provided under Treasury Regulations 1.409A‐1(b)(4), 1.409A‐1(b)(5) and such benefit shall not be provided until the date that is the earlier of (A) six months 1.409A‐1(b)(9), and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall will be provided by construed to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid greatest extent possible as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, consistent with those provisions, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that no so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Code Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A‐2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by either party, the Company at the time of Executive's Separation from Service to be a "specified employee" for purposes of Code Section 409A(a)(2)(B)(i), and as may be necessary to fully comply with Section 409A if any of the Code and all related rules and regulations payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be 4. Exhibit 10.2 "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to preserve avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) the expiration of the six-month period measured from the date of Executive's Separation from Service with the Company, (ii) the date of Executive's death or 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 first business day following the expiration of such applicable Code but do not satisfy an exemption from, Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Section. applicable agreement. No interest shall be due on any amounts so deferred.
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Section 409a.
6.1General. 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 Administrat...or 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. 6.2Potential 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-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 6 | 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-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-month period without interest thereon. 6.3Separation 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". 6.4Reimbursements. 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 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 6.5Installments. 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.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, in this Agreement, if at the time of the
Executive's separation from service within the meaning of Section 409A termination of the
Code, the Company determines that Executive's employment, the Executive is a "specified
employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent employee," as defined below, any
payment or benefit that the Executive becomes entitled to and all amou...nts, if any, payable under this Agreement or otherwise on account of the Executive's separation from service would be considered such termination of employment that constitute 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 and would (but for this provision) be payable and such benefit shall not be provided until within six (6) months following the date that is of termination, shall instead be paid, without interest, on the earlier next business day following the expiration of (A) such six months and one day after the Executive's separation from service, or (B) (6) month period or, if earlier, upon 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 (b) For purposes of this provision, Agreement, all references to "termination of employment" and correlative phrases shall be construed to require a "separation from service" (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), and the balance of term "specified employee" means an individual determined by the installments shall Company to be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement a specified employee under Treasury regulation Section 1.409A-1(i). (c) Each payment made under this Agreement shall be provided by treated as a separate payment and the Company or incurred by right to a series of installment payments, if any, under this Agreement is to be treated as a right to a series of separate payments. (d) The parties agree that their intent is that payments and benefits under this Agreement be exempt from Section 409A to the Executive during the time periods set forth in this Agreement. All reimbursements greatest extent applicable. This Agreement 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 interpreted accordingly to be provided or exempt from Section 409A, and all provisions of this Agreement shall be construed in a manner consistent with this intention. In 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 event 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 under this Agreement are subject to Section 409A, this Agreement shall be payable only upon the Executive's "separation from service." The determination of whether and when construed in a separation from service has occurred shall be made in accordance manner consistent 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 requirements for compliance with Section 409A and for avoiding taxes or penalties under Section 409A. Notwithstanding the foregoing, neither the Executive nor any beneficiary shall have any claim or right against the Company or any of the Code, the provision shall be read its directors, officers, employees, advisers or agents by reason of any failure or asserted failure of this Agreement, in such a manner so that all payments hereunder form or as administered, to comply with or qualify for exemption from 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. 409A.
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Section 409a. (a)
Anything in this This Agreement
is intended 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 Internal Revenue Code of 1986, as amended ("Section 409A") and shall be interpreted and construed consistently with such intent. The payments to Executive
is a "specified employee" within the meaning of under this Agreement are intended t...o be exempt under Section 409A(a)(2)(B)(i) of the Code, then 409A to the extent any payment possible as short-term deferrals or benefit otherwise under Section 409A. In the event that the Executive becomes entitled to under terms of this Agreement would subject Executive to taxes or otherwise on account penalties under 409A, the Company and Executive will diligently cooperate to amend the Agreement to avoid such 409A taxes or penalties. For purposes of Section 409A, the Executive's separation Retirement Date shall be deemed to be the "separation from service would be considered service" date for purposes of payment of any deferred compensation otherwise subject to Section 409A. (b) All reimbursements and in-kind benefits provided under 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 Agreement shall be payable made or provided in accordance with their original schedule. (b) All the requirements of Section 409A to the extent that such reimbursements or in-kind benefits provided and are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive's lifetime (or during a shorter period of time specified in the Agreement), (ii) the amount of 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 a 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 may not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such following the year in which the expense is incurred and (iv) the right to reimbursement or in-kind benefits is not subject to set off or liquidation or exchange for another benefit. (c) To any other benefit.6. Additional Terms. (a) This Agreement represents the extent that entire understanding of the parties hereto with respect to the matters set forth herein and supersedes any payment prior understandings or benefit described in agreements between the parties with respect thereto. The terms and provisions of this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment may not be modified 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 amended except in 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 writing signed by both parties. If any provision of this Agreement is ambiguous as shall be judicially determined to its compliance with Section 409A be invalid, illegal or unenforceable, the validity, legality and enforceability of the Code, remaining provisions shall not in any way be affected or impaired thereby. Notwithstanding the provision shall be read foregoing, and except as expressly provided in such a manner so this Agreement, nothing herein modifies the terms and conditions of Executive's Severance and Restrictive Covenant Agreement or the Long Term Incentive Plan. Notwithstanding anything contained herein, Executive acknowledges and agrees that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to nothing contained in this Agreement or any action taken by the Restrictive Covenants Agreement is intended Company in connection with Executive's resignation or transition (including the hiring or appointment of a successor to Executive's position or to a similar position) will constitute a separate payment termination for, or an event constituting, "Good Reason" for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree Executive's Severance and Restrictive Covenant Agreement, the Long Term Incentive Plan or any awards thereunder, or any other plan or agreement between Executive and the Company. (b) No waiver by either party of any breach by the other party of any condition or provision contained in this Agreement to be fulfilled or performed by such other party shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time. (c) Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be enforceable by the Company and Executive and their respective successors and assigns; provided that the rights and obligations of Executive under this Agreement may not be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A assigned or delegated without the prior written consent of the Code Company. (d) All questions concerning the construction, validity, enforcement 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 interpretation of this Agreement are determined to constitute deferred compensation subject to Section 409A and the exhibits hereto shall be governed by the internal law, and not the law of conflicts, of the Code but do not satisfy an exemption from, or the conditions of, such Section. State of Illinois. (e) AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL), THE COMPANY AND EXECUTIVE EACH EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
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Section 409a.
(a) Anything in The intent of the parties is that the payments and benefits that are eligible to be received under this Agreement
shall comply with or be exempt from the applicable requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other interpretive guidance issued thereunder ("Section 409A"), and, accordingly, to the
contrary notwithstanding, if at the time of the Executive's separation from service maximum extent permitted, this Agreement wi...ll be administered and interpreted in accordance with such intent. Each payment made under this Agreement shall be designated as a "separate payment" within the meaning of Section 409A 409A. Except as permitted by Section 409A, (a) Employee's right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (b) the amount of Employee's expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (c) in no event shall any expenses be reimbursed after the last day of the Code, calendar year following the Company determines year in which Employee incurred such expenses. In no event whatsoever shall Carlyle be liable for any tax, interest or penalties that may be imposed on Employee by Section 409A. Notwithstanding any provisions of this Agreement to the Executive contrary, if Employee is a "specified employee" within (within the meaning of Section 409A(a)(2)(B)(i) 409A and determined pursuant to any policies adopted by Carlyle consistent with Section 409A) at the time of Employee's separation from service, and if any portion of the Code, then payments or benefits to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's be received by Employee upon separation from service would be considered deferred compensation otherwise subject under Section 409A and cannot be paid or provided to the 20 percent additional tax imposed pursuant to Employee without Employee incurring taxes, interest or penalties under 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 409A, amounts that would otherwise have been paid be payable pursuant to this Agreement and benefits that would otherwise be provided pursuant to this Agreement, in each case, 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 immediately following Employee's separation from service will instead be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after or made available on the last earlier of (a) the first business day of the taxable year seventh month following the taxable year in which the expense was incurred. The amount date 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 Employee's 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. (b) Employee's death.
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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 either 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. (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.
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Section 409a.
(a) Anything in It is intended that this Agreement
to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of will comply with Section 409A of the
Code, Code (and any regulations and guidelines issued thereunder), to the
Company determines that extent the
Executive Agreement is
subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. Notwithstanding any provision to the contrary in this Agreement, if Emp...loyee is deemed on the date of his "separation from service" (within the meaning of Treas. Reg. Section 1.409A-1(h)) to be a "specified employee" within (within the meaning of Treas. Reg. Section 409A(a)(2)(B)(i) of the Code, 1.409A-1(i)), then with regard to the extent any payment or benefit that the Executive becomes entitled is required to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed delayed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) 409A(a)(2)(B) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is made prior to the earlier of (A) six months and one day after (i) the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance expiration of the six (6)-month period measured from the date of Employee's "separation from service," or (ii) the date of Employee's death (the "Delay Period"). Upon the expiration of the Delay Period, all payments delayed pursuant to this Section 26 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be payable paid to Employee in accordance with their original schedule. (b) All in-kind benefits provided a lump sum and expenses eligible for reimbursement any remaining payments due under this Agreement shall be provided by paid in accordance with the normal payment dates specified for them herein. Notwithstanding any provision of this Agreement to the contrary, to the extent required to comply with Section 409A of the Code or an exemption thereto, for purposes of determining Employee's entitlement to any compensation payable upon his termination of employment, Employee's employment will be deemed 8 to have terminated on the date of Employee's "separation from service" (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A of the Code. No action or failure to act, pursuant to this Section 26 shall subject the Company to any claim, liability, or incurred by expense, and the Executive during Company shall not have any obligation to indemnify or otherwise protect Employee from the time periods set forth in this Agreement. All reimbursements obligation to pay any taxes pursuant to Section 409A of the Code. With respect to any reimbursement or in-kind benefit arrangements of the Company that constitute deferred compensation for purposes of Section 409A of the Code, the following conditions shall be applicable: (i) the amount eligible for reimbursement, or in-kind benefits provided, under any such arrangement in one calendar year may not affect the amount eligible for reimbursement, or in-kind benefits to be provided, under such arrangement in any other calendar year (except that the health and dental plans may impose a limit on the amount that may be reimbursed or paid as soon as administratively practicable, but in no event shall if such limit is imposed on all participants), (ii) any reimbursement must be paid after made on or before the last day of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect incurred, and (iii) the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To benefit.27. Effectiveness. This Agreement shall be effective on the extent that IPO Closing Date (contingent on the closing of such initial public offering and Employee's continued employment with the Company through the IPO Closing Date). If the IPO Closing Date does not occur for any payment or benefit described in reason, then this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether null 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. void.
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Section 409a.
6.1General. 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 Administrat...or 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. 6.2Potential 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-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-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-month period without interest thereon. 6.3Separation 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". 6.4Reimbursements. 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 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 6.5Installments. 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.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time It is intended that all of the
Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to severance benefits and other payments payable under this Agreement
or otherwise on account of the... Executive's separation from service would be considered deferred compensation otherwise subject satisfy, to the 20 percent additional tax imposed pursuant to Section 409A(a) of greatest extent possible, the Code as a result of exemptions from the application of Internal Revenue Code Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable 409A provided under Treasury Regulations 1.409A-l(b)(4), 1.409A-l(b)(5) and such benefit shall not be provided until the date that is the earlier of (A) six months 1.409A-l(b)(9). and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall will be provided by construed to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid greatest extent possible as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, consistent with those provisions, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that no so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Code Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment (including. without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that l.409A-2(b)(2)(iii)), Executive 's right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement. if Executive is deemed by either party, the Company at the time of Executive's Separation from Service to be a "specified employee" for purposes of Code Section 409A(a)(2)(8)(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 4. Company are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to preserve avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) the expiration of the six-month period measured from the date of Executive's Separation from Service with the Company, (ii) the date of Executive's death or 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 first business day following the expiration of such applicable Code but do not satisfy an exemption from, Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Section. applicable agreement. No interest shall be due on any amounts so deferred.
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