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Section 409a Clause Example with 1,590 Variations from Business Contracts
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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Found in
Fusion Pharmaceuticals Inc. contract
Variations of a "Section 409a" Clause from Business Contracts
Section 409a. (a) Anything Six Month Delay. For purposes of this Agreement, a termination of employment means a "separation from service" as defined in this Agreement Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"). If and to the contrary notwithstanding, if at extent any portion of any payment, compensation or other benefit provided to the time of the Executive's Executive in connection with his separation from service (as defined in Section 409A of Code) is determined to constitut...e "nonqualified deferred compensation" within the meaning of Section 409A of the Code, the Company determines that the Executive and he is a "specified employee" within the meaning of specified employee as defined in Section 409A(a)(2)(B)(i) of the Code, then to as determined by the extent any payment or benefit Company in accordance with its procedures, by which determination he hereby agrees that the Executive becomes entitled to under this Agreement or otherwise on account he is bound, such portion of the Executive's separation from service would be considered deferred payment, 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 or other benefit will not be payable and such benefit shall not be provided until the date that is paid before the earlier of (A) (i) the day that is six months and plus one day after the Executive's date of separation from service, service (as determined under Section 409A) or (B) (ii) the Executive's death. If tenth day after the date of his death (as applicable, the "New Payment Date"). The aggregate of any such delayed cash payment is payments that otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid to him during the six-month period but for between the application date of this provision, separation from service and the balance of New Payment Date will be paid to him in a lump sum in the installments shall first payroll period beginning after such New Payment Date, and any remaining payments will be payable in accordance with paid on their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under General 409A Principles. For purposes of 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 Agreement, each amount to 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 benefit to be provided will be construed as a separate identified payment for purposes of Section 409A, and any payments that are due within the "short term deferral period" as defined in Section 409A or are paid in a manner covered by Treas. Reg. Section 1.409A 1(b)(9)(iii) will not be treated as deferred compensation unless applicable law requires otherwise. Neither the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such Company nor the Executive will have the right to reimbursement accelerate or in-kind defer the delivery of any such payments or benefits is not subject except to liquidation or exchange for another benefit. (c) To the extent that any payment specifically permitted or benefit described required by Section 409A. This Agreement is intended to comply with the provisions of Section 409A and the Agreement will, to the extent practicable, be construed in this accordance therewith. Terms defined in the Agreement constitutes "non-qualified deferred compensation" will have the meanings given such terms under Section 409A of the Code, if 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 required 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 409A. In any event, neither 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 nor Holdings makes no representation any representations or warranty and shall neither will have no any liability to the Executive or any other person if any provisions of or payments under this Agreement are determined to constitute deferred compensation subject to Code Section 409A of the Code but do not to satisfy an exemption from, or the conditions of, such Section. of that section.
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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, and shall be construed consistently with that intent. Notwithstanding the foregoing, in no event shall the Company determines that the Executive is a "specified employee" 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 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.
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Provention Bio, Inc. contract
Section 409a. (a) Anything 18.1 It is the intention of the Corporation and the Partnership that all payments and benefits under this Agreement shall be made and provided in a manner that is either exempt from or intended to avoid taxation under Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A"), to the extent applicable. Any ambiguity in this Agreement shall be interpreted to comply with the above. The Executive acknowledges that the Corporation and the Partnership have made no rep...resentations as to the contrary notwithstanding, if at the time treatment of the compensation and benefits provided hereunder and the Executive has been advised to obtain his own tax advice. 18.2 Each amount or benefit payable pursuant to this Agreement shall be deemed a separate payment for purposes of Section 409A. 18.3 For all purposes under this Agreement, any iteration of the word "termination" (e.g., "terminated") with respect to the Executive's employment, shall mean a separation from service within the meaning of Section 409A 409A. 18.4 Notwithstanding anything in this Agreement to the contrary, in the event the stock of the Code, the Company determines that Corporation is publicly traded on an established securities market or otherwise and the Executive is a "specified employee" within (as determined under the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, Corporation's administrative procedure for 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 determinations, 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 Section 409A) at 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 any 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 under this Agreement will that are 11 deemed to 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 shall not be paid or begin payment until the earlier of (i) the Executive's death or (ii) the first payroll date following the six (6) month anniversary of the Code but do not satisfy an exemption from, Executive's date of termination of employment; provided, however, that the Corporation if so requested by the Executive agrees to contribute any such payments required to be made to the Executive to a rabbi trust established by the Corporation for the benefit of the Executive. 18.5 Any reimbursements provided under this Agreement shall be made as soon as practicable and no later than December 31 of the year following the year in which such expenses are incurred, or such earlier date as provided under any plan or policy of the conditions of, such Section. Corporation or Partnership, as applicable.
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Cedar Realty Trust, Inc. contract
Section 409a. (a) Anything in To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A of the Code. This Agreement will be administered and interpreted in a manner consistent with this intent. The Company agrees to take all reasonable steps to ensure that Employee shall not be subject to any penalties with respect to any payments received hereunder. In the event that any guidance is issued by the Internal Revenue Service, or if a judicial decision is rendered, to... the contrary notwithstanding, if effect that arrangements similar to this Agreement do not satisfy the requirements of Section 409A, the Company and Employee agree to take whatever reasonable actions may be necessary at such time in order to ensure that (i) the time payments under this Agreement shall be in compliance with Section 409A and (ii) the Employee shall not be subject to any penalty under Section 409A with respect to his receipt of such payments. (b) Notwithstanding anything contained herein to the Executive's separation contrary, any payments on account of a termination of employment that are subject to Section 409A shall not be made until Employee would be considered to have incurred a "separation from service service" from the Company within the meaning of Section 409A of 409A. To the Code, extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during the Company determines that the Executive six-month period immediately following Employee's separation from service shall, if Employee is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's his separation from service would service, instead be considered deferred compensation otherwise subject to paid on the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until first business day after the date that is the earlier of (A) six months and one day after the Executive's following Employee's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application service (or Employee's death, if earlier). (c) For purposes of this provision, and the balance of the installments Agreement, each amount to be paid or benefit to be provided to Employee pursuant to this Agreement shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and construed as a separate identified payment for purposes of Section 409A. (d) With respect to 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 terms of the taxable year following Agreement, (i) the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable such expenses incurred eligible for reimbursement in one any taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other another taxable year (except for (ii) any lifetime or other aggregate limitation applicable reimbursements of such expenses shall be made no later than the end of the calendar year following the calendar year in which the related expenses were incurred, except, in each case, to medical expenses). Such the extent that the right to reimbursement or in-kind benefits does not provide for a "deferral of compensation" within the meaning of Section 409A; provided, however that with respect to any reimbursements for any taxes to which Employee becomes entitled under the terms of this Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Employee remits the related taxes; and (iii) the right to reimbursement is not subject to liquidation or exchange for another any other benefit. (c) To 16 25. Release and Forfeiture of Severance Benefits. The right of Employee to receive or to retain Severance Benefits shall be in consideration for, and subject to, (1) execution of and delivery to the extent that any payment or benefit described Company of a release of claims substantially in the form attached as Exhibit C to this Agreement constitutes "non-qualified deferred compensation" under Section 409A Agreement, amended as necessary to comply with applicable law (the "Release") and lapse of the Code, period for revocation, if any, of the Release without the Release having been revoked no later than 60 days after the Termination Date, and (2) Employee's continued compliance with the covenants hereof. In the event that Employee breaches any of the Covenants, Company shall have the right to (a) terminate any further provision of Severance Benefits not yet paid or provided, (b) seek reimbursement from Employee for any and all such Severance Benefits previously paid or provided to Employee, (c) recover from Employee all shares of stock of Company the extent that vesting of which, or the option to purchase, was accelerated by reason of the Severance Benefits (or the proceeds therefrom, reduced by any exercise or purchase price paid to acquire such payment or benefit is payable upon shares), and (d) to immediately cancel all equity awards the Executive's termination vesting of employment, then such payments or benefits which was accelerated by reason of the Severance Benefits. No Severance Benefits shall be payable only upon paid until the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with 60th day following 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 Termination Date, subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 24(b) hereof.
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Mobile Mini, Inc. contract
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 6 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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Found in
Winc, Inc. contract
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-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. 6.3 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 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 4 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.
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TGPX Holdings I LLC contract
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 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-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. 6.3 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 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.
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ICU Medical contract
Section 409a. (a) Anything in A.In General. The parties intend that this Agreement and the benefits provided hereunder be interpreted and construed to comply with Section 409A to the extent applicable thereto. Notwithstanding any provision of this Agreement to the contrary notwithstanding, if at contrary, this Agreement shall be interpreted and construed consistent with this intent, provided that the Company shall not be required to assume any increased economic burden in connection therewith. Although the Co...mpany intends to administer this Agreement so that it will comply with the requirements of Section 409A, the Company does not represent or warrant that this Agreement will comply with Section 409A or any other provision of federal, state, local or non-United States law. B.Prohibition on Acceleration of Payments. The time or schedule of any payment or amount scheduled to be paid pursuant to the terms of this Agreement, or pursuant to the terms of any other employment agreement or compensation arrangement entered into between the Executive and the Company or any of its subsidiaries, may not be accelerated hereunder, or under any such other employment agreement or other compensation arrangement, except as permitted under Section 409A. C.Delay Period. In the event that any payment or distribution or portion of any payment or distribution to be made to the Executive hereunder cannot be characterized as a "short-term deferral" for purposes of Section 409A and is not otherwise exempt from the provisions of Section 409A, and the Executive is determined to be a "specified employee" under Section 409A, such portion of the payment shall be delayed until the earlier to occur 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 death 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) termination of employment with the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, Company and its subsidiaries (the "Delay Period"). Upon 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 installments Delay Period, the payments delayed pursuant to this Section 4.C shall be paid to the Executive in a lump sum, and any remaining payments due under this Agreement shall be payable in accordance with their original payment 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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Groupon, Inc. contract
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-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. 6.3 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 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 5 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.
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Winc, Inc. contract
Section 409a. (a) Anything To the extent applicable, it is intended that the Agreement comply with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A"). The Agreement shall be administered and interpreted in a manner consistent with this intent, and any provision that would cause the Agreement to fail to satisfy Section 409A shall have no force and effect until amended to comply therewith (which amendment may be retroactive to the contrary notwithstanding, if at ext...ent permitted by Section 409A). Notwithstanding anything contained herein to the time contrary, Executive shall not be considered to have terminated employment with Employer for purposes of the Agreement and no payments shall be due to Executive under the Agreement which are payable upon Executive's separation termination of employment unless Executive would be considered to have incurred a "separation from service service" from Employer Exhibit 10.7 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 409A. To the extent any payment or benefit required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that the Executive becomes entitled to under this Agreement or would 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 benefits that would otherwise be provided until pursuant to the Agreement during the twelve (12) month period immediately following Executive's termination of employment shall instead be paid on the first business day after the date that is the earlier twelve (12) months (as applicable) following Executive's termination of (A) six months and one day after the employment (or upon 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 death, if earlier). In addition, for the application of this provision, and the balance purposes of the installments Agreement, each amount to be paid or benefit to be provided to Executive pursuant to the Employment Agreement shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and construed as a separate identified payment for purposes of Section 409A. With respect to 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 terms of the taxable year following Agreement, (i) the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable such expenses incurred eligible for reimbursement in one any taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other another taxable year (except for and (ii) 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 reimbursements of such expenses shall be made no later than the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A end of the Code, and calendar year following the calendar year in which the related expenses were incurred, except, in each case, to the extent that such payment or benefit is payable upon the Executive's termination right to reimbursement does not provide for a "deferral of employment, then such payments or benefits shall be payable only upon compensation" within the Executive's "separation from service." The determination meaning 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. 409A.
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Nevada Property 1 LLC contract
