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 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 her 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. 15 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 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 no later than the December 31st 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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Section 409a.
(a) Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, in this Agreement, if
at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section
409A(a)(2)(B)(i) 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 fr...om 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 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, Internal Revenue Code of 1986, as amended (the "Code") and to "specified employee" within the extent that such payment or benefit is payable upon the Executive's termination meaning 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 any final regulations and guidance promulgated thereunder ("Section 409A") at the time of Executive's termination, then only that portion of the severance and benefits payable to Executive pursuant to this Agreement, if any, and any other severance payments or separation benefits which may be considered deferred compensation under Section 409A (together, the "Deferred Compensation Separation Benefits"), which (when considered together) do not exceed the Section 409A Limit (as defined herein) may be made within the first six (6) months following Executive's termination of employment in accordance with the payment schedule applicable to each payment or benefit. For these purposes, each severance payment is hereby designated as a separate payment and will not collectively be treated as a single payment. Any portion of the Deferred Compensation Separation Benefits in excess of the Section 409A Limit otherwise due to Executive on or within the six (6) month period following Executive's termination will accrue during such six (6) month period and will become payable in a lump sum payment on the date six (6) months and one (1) day following the date of Executive's termination of employment. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Executive dies following termination but prior to the six (6) month anniversary of Executive's date of termination, then any payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Executive's death and all related rules and regulations other Deferred Compensation Separation Benefits will be payable in order accordance with the payment schedule applicable to preserve each payment or benefit. It is the intent of this Agreement to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder without will be subject to the additional cost tax imposed under Section 409A, and any ambiguities herein will be interpreted to either party. (e) so comply. The Company makes no representation and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or warranty and shall have no liability desirable to the avoid imposition of any additional tax or income recognition prior to actual payment to Executive or any other person if any provisions under Section 409A. 8 For purposes of this Agreement are Agreement, "Section 409A Limit" will mean the lesser of two (2) times: (i) Executive's annualized compensation based upon the annual rate of pay paid to Executive during the Company's taxable year preceding the Company's taxable year of Executive's termination of employment as determined to constitute deferred compensation subject under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any IRS guidance issued with respect thereto; or (ii) the maximum amount that may be taken into account under a qualified plan pursuant to Section 409A 401(a)(17) of the Code but do not satisfy an exemption from, or for the conditions of, such Section. year in which Executive's employment is terminated.
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Section 409a.
(a) Anything in this Agreement It is intended that each installment of the payments provided hereunder constitute separate "payments" for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the
contrary notwithstanding, if at greatest extent possible, the
time of exemption from the
Executive's separation from service within the meaning application of Section 409A
provided under Treasury Regulation Section 1.409A-1(b)(4) (as a "sho...rt-term deferral"). To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the Code, the Company determines provision will be read in such a manner so that the Executive is a "specified employee" within the meaning of all payments hereunder comply with Section 409A(a)(2)(B)(i) of the Code, then 409A. Except as otherwise expressly provided herein, to the extent any payment expense reimbursement or the provision of any in-kind benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would is determined to be considered deferred compensation otherwise subject to Section 409A, the 20 percent additional tax imposed pursuant to Section 409A(a) amount 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 reimbursement, or 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 provision of 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 benefit, in one taxable calendar 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 expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To In no event whatsoever will the extent Company be liable for any additional tax, interest or penalties that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" may be imposed on Executive under Section 409A of the Code, and or any damages for failing 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. 409A.
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Section 409a.
(a) Anything It is intended that the payments and benefits under this Agreement comply with, or as applicable, constitute a short-term deferral or otherwise be exempt from, the provisions of Section 409A of the Code and the regulations and other guidance issued thereunder ("Section 409A"). The Employer shall administer and interpret this Agreement in
a manner so that such payments and benefits comply with, or are otherwise exempt from, the provisions of Section 409A. Any provision that would cau...se this Agreement to fail to satisfy Section 409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the contrary notwithstanding, if at extent permitted by Section 409A). Notwithstanding anything contained herein to the time contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, Employee shall not be considered to have terminated employment with the Employer for purposes of this Agreement and no payments shall be due to Employee under this Agreement providing for payment of amounts on termination of employment unless Employee would be considered to have incurred a "separation from service" from the Executive's separation from service Employer 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 this Agreement during the six-month period immediately following Employee's termination of employment shall instead be paid on the first business day after 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 following Employee's termination of employment (or upon death, if earlier). In addition, for the application 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 which constitutes deferred compensation subject to Section 409A shall be payable in accordance with their original schedule. (b) All construed as a separate identified payment for purposes of Section 409A. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits provided and shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement under this Agreement reimbursement, of 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 (iii) such payments shall be provided by the Company made on or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after before the last day of the Employee's taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits occurred. Any tax gross-up payment as 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 herein shall be made in accordance with any event no later than the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A end of the Code. To calendar year immediately following the extent that calendar year in which Employee remits the related taxes, and any provision reimbursement of this Agreement is ambiguous as expenses incurred due to its compliance with Section 409A a tax audit or litigation shall be made no later than the end of the Code, calendar year immediately following the provision shall be read calendar year in such a manner so which 5 the taxes that all payments hereunder comply with Section 409A are the subject of the Code. Each payment pursuant audit or litigation are remitted to this Agreement or the Restrictive Covenants Agreement is intended taxing authority, or, if no taxes are 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 remitted, the end of the Code and all related rules and regulations calendar year following the calendar year in order to preserve which the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation audit 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. litigation is completed.
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Section 409a.
(a) Anything in The Parties intend that this Agreement
and the payments made hereunder will be exempt from, or if not so exempt, comply with, the requirements of Section 409A, and shall be interpreted and construed consistently with such intent. Without limiting the foregoing, the separation payments and benefits to You pursuant to Section 4(d) and Section 4(e) 10 this Agreement are intended to be exempt from Section 409A to the
contrary notwithstanding, if at maximum extent possible, as short-t...erm deferrals pursuant to Treasury Regulation §1.409A-1(b)(4) or payments made pursuant to a separation pay plan pursuant to Treasury Regulation §1.409A-1(b)(9). Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate and distinct payment for purposes of Section 409A. To the time extent any amounts under this Agreement are payable by reference to Your "termination of the Executive's separation employment," such term and similar terms shall be deemed to refer to Your "separation from service service," within the meaning of Section 409A of (after giving effect to the Code, presumptions contained therein) with respect to any payments that are subject to Section 409A. Notwithstanding any other provision in this Agreement, to the Company determines that the Executive is a "specified employee" extent any payments made or contemplated hereunder constitute nonqualified deferred compensation, within the meaning of Section 409A(a)(2)(B)(i) 409A, then (i) each such payment which is conditioned upon Your execution of a release and which is to be paid or provided during a designated period that begins in one taxable year and ends in a second taxable year, shall be paid or provided in the later of the Code, then to two taxable years and (ii) if You are a specified employee (within the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account meaning of Section 409A) as of the Executive's date of Your separation from service, each such payment that is payable upon Your separation from service and would be considered deferred compensation otherwise subject have been paid prior to the 20 percent additional tax imposed pursuant to Section 409A(a) six-month anniversary 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 Your separation from service, shall be delayed until the earlier to occur of (A) the first day of the seventh month following Your separation from service or (B) the Executive's date of Your death. If any You hereby agree to be bound by the Company's determination of its "specified employees" (as such delayed cash payment term is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable defined in Section 409A) provided such determination is in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for any of the methods permitted under the regulations issued under Section 409A. Any reimbursement under payable to You pursuant to this Agreement shall be provided conditioned on the submission by You of all expense reports reasonably required by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements under any applicable expense reimbursement policy, and shall be paid as soon as administratively practicable, to You within 30 days following receipt of such expense reports, but in no event shall any reimbursement be paid after later than the last day of the taxable calendar year following the taxable calendar year in which You incurred the expense was incurred. The reimbursable expense. Any amount of expenses eligible for reimbursement, or in-kind benefits provided or reimbursable expenses incurred in one taxable benefit provided, during a calendar year shall not affect the in-kind benefits to be provided or the amount of expenses eligible for reimbursement in reimbursement, or in-kind benefit to be provided, during any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such calendar year. The right to any reimbursement or in-kind benefits is benefit pursuant to this Agreement shall not be subject to liquidation or exchange for another any other benefit. (c) To the extent that any amount payable hereunder is deemed to be a substitute for a payment or benefit described provided under another agreement with You, then the amount payable hereunder shall be paid at the same time and in the same form as such substituted payment to the extent required to comply with Section 409A. In the event the terms of this Agreement constitutes "non-qualified deferred compensation" would subject You to taxes or penalties under Section 409A ("409A Penalties"), the Company and You shall cooperate diligently to amend the terms of the Code, and Agreement to avoid such 409A Penalties, to the extent possible, but in no event will the Company be liable for any additional tax, interest or penalties that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall may 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 imposed on You under Section 409A of the Code. To the extent that or any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such damages because 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 was determined to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may not be amended, as reasonably requested by either party, and as may be necessary to fully comply in compliance 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 The parties intend that any compensation, benefits and other amounts payable or provided to Employee under this Agreement
be paid or provided in compliance with Section 409A of the Internal Revenue Code and all regulations, guidance, and other interpretative authority issued thereunder (collectively, "Section 409A") such that there will be no adverse tax consequences, interest, or penalties for Employee under Section 409A as a result of the payments and benefits so paid or provid...ed to him. The parties agree to modify this Agreement, or the timing (but not the amount) of the payment hereunder of severance or other compensation, or both, to the extent necessary to comply with and to the extent permissible under Section 409A. In addition, notwithstanding anything to the contrary notwithstanding, if at contained in any other provision of this Agreement, the payments and benefits to be provided Employee under this Agreement shall be subject to the provisions set forth below. (a) The date of Employee's "separation from service," as defined in the regulations issued under Section 409A, shall be treated as Employee's last day of employment for purpose of determining the time of payment of any amount that becomes payable to Employee under this Agreement upon the Executive's separation from service within termination of Employee's employment and that is treated as an amount of deferred compensation for purposes of Section 409A. (b) In the case of any amounts that are payable to Employee under this Agreement, or under any other "nonqualified deferred compensation plan" (within the meaning of Section 409A 409A) maintained by the Company in the form of installment payments, (i) Employee's right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii), and (ii) to the extent any such plan does not already so provide, it is hereby amended as of the Code, the Company determines that the Executive date hereof to so provide, with respect to amounts payable to Employee thereunder. (c) If Employee is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of Employee's "separation from service" within the Code, meaning of Section 409A, then to the extent any payment or benefit that the Executive becomes entitled otherwise required to be made to Employee under this Agreement or otherwise on account of the Executive's separation from service would be considered service, to the extent such payment (after taking in to account all exclusions applicable to such payment under Section 409A) is properly treated as 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 409A, shall not be payable and such benefit shall not be provided made until the date that is first business day after (i) the earlier expiration of (A) six months and one day after from the Executive's date of Employee's separation from service, or (B) (ii) if earlier, the Executive's death. If any such delayed date of Employee's death (the "Delayed Payment Date"). On the Delayed Payment Date, there shall be paid to Employee or, if Employee has died, to Employee's estate, in a single cash payment is otherwise payable on lump sum, 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 amount equal to aggregate amount of the installments shall be payable in accordance with their original schedule. (b) All payments delayed pursuant to the preceding sentence. (d) To the extent that the reimbursement of any expenses or the provision of any in-kind benefits provided and pursuant to this Agreement is subject to Section 409A, (i) the amount of such expenses eligible for reimbursement under this Agreement shall reimbursement, or in-kind benefits to be provided by the Company or incurred by the Executive hereunder 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 calendar year shall not affect the amount of such expenses eligible for reimbursement or in-kind benefits to be provided hereunder in any other calendar year; provided, however, that the foregoing shall not apply to any limit on the amount of any expenses incurred by Employee that 6 may be reimbursed or paid under the terms of the Company's medical plan, if such limit is imposed on all similarly situated participants in such plan; (ii) all such expenses eligible for reimbursement hereunder shall be paid to Employee as soon as administratively practicable after any documentation required for reimbursement for such expenses has been submitted, but in any other taxable event by no later than December 31 of the calendar year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such following the calendar year in which such expenses were incurred; and (iii) Employee's right to reimbursement receive any such reimbursements or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. benefit.
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Section 409a.
(a) Anything in The Parties intend that this Agreement
and the payments made hereunder will be exempt from, or if not so exempt, comply with, the requirements of Section 409A, and shall be interpreted and construed consistently with such intent. Without limiting the 10 foregoing, the separation payments and benefits to You pursuant to Section 4(d) and Section 4(e) this Agreement are intended to be exempt from Section 409A to the
contrary notwithstanding, if at maximum extent possible, as short-t...erm deferrals pursuant to Treasury Regulation §1.409A-1(b)(4) or payments made pursuant to a separation pay plan pursuant to Treasury Regulation §1.409A-1(b)(9). Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate and distinct payment for purposes of Section 409A. To the time extent any amounts under this Agreement are payable by reference to Your "termination of the Executive's separation employment," such term and similar terms shall be deemed to refer to Your "separation from service service," within the meaning of Section 409A of (after giving effect to the Code, presumptions contained therein) with respect to any payments that are subject to Section 409A. Notwithstanding any other provision in this Agreement, to the Company determines that the Executive is a "specified employee" extent any payments made or contemplated hereunder constitute nonqualified deferred compensation within the meaning of Section 409A(a)(2)(B)(i) 409A, then (i) each such payment which is conditioned upon Your execution of a release and which is to be paid or provided during a designated period that begins in one taxable year and ends in a second taxable year, shall be paid or provided in the later of the Code, then to two taxable years and (ii) if You are a specified employee (within the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account meaning of Section 409A) as of the Executive's date of Your separation from service, each such payment that is payable upon Your separation from service and would be considered deferred compensation otherwise subject have been paid prior to the 20 percent additional tax imposed pursuant to Section 409A(a) six-month anniversary 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 Your separation from service, shall be delayed until the earlier to occur of (A) the first day of the seventh month following Your separation from service or (B) the Executive's date of Your death. If any You hereby agree to be bound by the Company's determination of its "specified employees" (as such delayed cash payment term is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable defined in Section 409A) provided such determination is in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for any of the methods permitted under the regulations issued under Section 409A. Any reimbursement under payable to You pursuant to this Agreement shall be provided conditioned on the submission by You of all expense reports reasonably required by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements under any applicable expense reimbursement policy, and shall be paid as soon as administratively practicable, to You within 30 days following receipt of such expense reports, but in no event shall any reimbursement be paid after later than the last day of the taxable calendar year following the taxable calendar year in which You incurred the expense was incurred. The reimbursable expense. Any amount of expenses eligible for reimbursement, or in-kind benefits provided or reimbursable expenses incurred in one taxable benefit provided, during a calendar year shall not affect the in-kind benefits to be provided or the amount of expenses eligible for reimbursement in reimbursement, or in-kind benefit to be provided, during any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such calendar year. The right to any reimbursement or in-kind benefits is benefit pursuant to this Agreement shall not be subject to liquidation or exchange for another any other benefit. (c) To the extent that any amount payable hereunder is deemed to be a substitute for a payment or benefit described provided under another agreement with You, then the amount payable hereunder shall be paid at the same time and in the same form as such substituted payment to the extent required to comply with Section 409A. In the event the terms of this Agreement constitutes "non-qualified deferred compensation" would subject You to taxes or penalties under Section 409A ("409A Penalties"), the Company and You shall cooperate diligently to amend the terms of the Code, and Agreement to avoid such 409A Penalties, to the extent possible, but in no event will the Company be liable for any additional tax, interest or penalties that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall may 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 imposed on You under Section 409A of the Code. To the extent that or any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such damages because 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 was determined to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may not be amended, as reasonably requested by either party, and as may be necessary to fully comply in compliance 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 The Parties intend that this Agreement
and the payments made hereunder will be exempt from, or if not so exempt, comply with, the requirements of Section 409A, and shall be interpreted and construed consistently with such intent. Without limiting the foregoing, the separation payments and benefits to You pursuant to Section 4(d) and Section 4(e) this Agreement are intended to be exempt from Section 409A to the
contrary notwithstanding, if at maximum extent possible, as short-term... deferrals pursuant to Treasury Regulation §1.409A-1(b)(4) or payments made pursuant to a separation pay plan pursuant to Treasury Regulation §1.409A-1(b)(9). Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate and distinct payment for purposes of Section 409A. To the time extent any amounts under 10 this Agreement are payable by reference to Your "termination of the Executive's separation employment," such term and similar terms shall be deemed to refer to Your "separation from service service," within the meaning of Section 409A of (after giving effect to the Code, presumptions contained therein) with respect to any payments that are subject to Section 409A. Notwithstanding any other provision in this Agreement, to the Company determines that the Executive is a "specified employee" extent any payments made or contemplated hereunder constitute nonqualified deferred compensation, within the meaning of Section 409A(a)(2)(B)(i) 409A, then (i) each such payment which is conditioned upon Your execution of a release and which is to be paid or provided during a designated period that begins in one taxable year and ends in a second taxable year, shall be paid or provided in the later of the Code, then to two taxable years and (ii) if You are a specified employee (within the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account meaning of Section 409A) as of the Executive's date of Your separation from service, each such payment that is payable upon Your separation from service and would be considered deferred compensation otherwise subject have been paid prior to the 20 percent additional tax imposed pursuant to Section 409A(a) six-month anniversary 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 Your separation from service, shall be delayed until the earlier to occur of (A) the first day of the seventh month following Your separation from service or (B) the Executive's date of Your death. If any You hereby agree to be bound by the Company's determination of its "specified employees" (as such delayed cash payment term is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable defined in Section 409A) provided such determination is in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for any of the methods permitted under the regulations issued under Section 409A. Any reimbursement under payable to You pursuant to this Agreement shall be provided conditioned on the submission by You of all expense reports reasonably required by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements under any applicable expense reimbursement policy, and shall be paid as soon as administratively practicable, to You within 30 days following receipt of such expense reports, but in no event shall any reimbursement be paid after later than the last day of the taxable calendar year following the taxable calendar year in which You incurred the expense was incurred. The reimbursable expense. Any amount of expenses eligible for reimbursement, or in-kind benefits provided or reimbursable expenses incurred in one taxable benefit provided, during a calendar year shall not affect the in-kind benefits to be provided or the amount of expenses eligible for reimbursement in reimbursement, or in-kind benefit to be provided, during any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such calendar year. The right to any reimbursement or in-kind benefits is benefit pursuant to this Agreement shall not be subject to liquidation or exchange for another any other benefit. (c) To the extent that any amount payable hereunder is deemed to be a substitute for a payment or benefit described provided under another agreement with You, then the amount payable hereunder shall be paid at the same time and in the same form as such substituted payment to the extent required to comply with Section 409A. In the event the terms of this Agreement constitutes "non-qualified deferred compensation" would subject You to taxes or penalties under Section 409A ("409A Penalties"), the Company and You shall cooperate diligently to amend the terms of the Code, and Agreement to avoid such 409A Penalties, to the extent possible, but in no event will the Company be liable for any additional tax, interest or penalties that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall may 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 imposed on You under Section 409A of the Code. To the extent that or any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such damages because 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 was determined to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may not be amended, as reasonably requested by either party, and as may be necessary to fully comply in compliance 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 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 It 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 c...ompensation 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 intended that this Agreement and the Award 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 any regulations and all related rules guidelines issued thereunder), to the extent the Agreement and regulations Award are subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to preserve comply with Section 409A, the payments and benefits provided hereunder without additional cost parties hereto will negotiate in good faith to either party. (e) The Company makes no representation or warranty and shall have no liability amend the Agreement in a manner that preserves the original intent of the parties to the Executive or extent reasonably possible. Notwithstanding any other person if any provisions provision of this Agreement are determined to constitute the contrary, for purposes of any provision of this Agreement providing for the distribution of any Shares upon or following a termination of employment that is considered deferred compensation under Section 409A, references to the Employee's "termination of employment" (and corollary terms) with the Company shall be construed to refer to the Employee's "separation from service" (within the 5 meaning of Treas. Reg. Section 1.409A-1(h)) with the Company. Notwithstanding any provision to the contrary in this Agreement, if the Employee is deemed on the date of his or her "separation from service" (within the meaning of Treas. Reg. Section 1.409A-1(h)) to be a "specified employee" (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment that is considered deferred compensation under Section 409A payable on account of a "separation from service" that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after taking into account any applicable exceptions to such requirement), such payment shall not be made prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of the Employee's "separation from service," or (ii) the date of the Employee's death (the "Delay Period"). Upon the expiration of the Delay Period, all payments delayed pursuant hereto (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Employee in a lump sum and any remaining payments due under this Agreement shall be paid in accordance with the normal payment dates specified for them herein. 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. No action or failure to act, pursuant to this Section 11 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Employee from the obligation to pay any taxes, interest or penalties pursuant to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Code.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of 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 Notwithstanding any provision of this Agreement is ambiguous as to its compliance with Section 409A the contrary, all provisions of the Code, the provision shall be read in such a manner so that all payments hereunder this Agreement are intended to comply with Section 409A of the Code. Each payment pursuant to Internal Revenue Code of 1986, as amended, and the applicable Treasury regulations and administrative guidance issued thereunder (collectively, "Section 409A") or an exemption therefrom and shall be construed and administered in accordance with such intent. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the Restrictive Covenants maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement is intended to constitute shall be treated as a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that payment. Notwithstanding any provision in this Agreement may to the contrary, if any payment or benefit provided for herein would be amended, as reasonably requested by either party, subject to additional taxes and as may be necessary to fully comply with interest under Section 409A if Executive's receipt of such payment or benefit is not delayed until the Code and all related rules and regulations in order earlier of (a) the date of Executive's death or (b) the 16 date that is six months after the Termination Date (such date, the "Section 409A Payment Date"), then such payment or benefit shall not be provided to preserve Executive (or Executive's estate, if applicable) until the Section 409A Payment Date. Notwithstanding the foregoing, the Company makes no representations that 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 under this Agreement are determined to constitute deferred compensation subject to exempt from, or compliant with, Section 409A and in no event shall the Company or any of its Affiliates be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by Executive on account of non-compliance with Section 409A. [The remainder of this page was left blank intentionally; the Code but do not satisfy an exemption from, or the conditions of, such Section. signature page follows.]
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