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. View More Arrow
Found in Fusion Pharmaceuticals Inc. contract

Variations of a "Section 409a" Clause from Business Contracts

Section 409a. (a) Anything in this It is intended that all of the benefits provided under the Agreement satisfy, to the contrary notwithstanding, if at greatest extent possible, the time of exemptions from the Executive's separation from service within the meaning application of Section 409A of the Code, Internal Revenue Code of 1986, as amended (the "Code") and the Company regulations and other guidance thereunder and any state law of similar effect (collectively, "Section 409A") provided under Treasury Regu...lations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and the Agreement will be construed to the greatest extent possible as consistent with those provisions, taking into account the effect of the status of the benefits under the Prior Agreement on this Agreement. To the extent not so exempt, the Agreement (and any definitions under the Agreement) will be construed in a manner that complies with Section 409A, and incorporates by reference all required definitions and payment terms. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b) (2) (iii)), the Executive's right to receive any installment payments under the Agreement will be treated as a right to receive a series of separate payments and, accordingly, each installment payment under the Agreement will at all times be considered a separate and distinct payment. If the Board determines that any of the payments in connection with a Separation from Service constitute "deferred compensation" under Section 409A, and if the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then Company, as such term is defined in Section 409A(a)(2)(B)(i), at the time of his Separation from Service, then, solely to the extent any payment or benefit that necessary to avoid the Executive becomes entitled to under this Agreement or otherwise on account incurrence of the Executive's separation from service would be considered deferred compensation otherwise subject to adverse personal tax consequences under Section 409A, the 20 percent additional tax imposed pursuant to Section 409A(a) timing of the Code payments due on a Separation from Service will be delayed as a result follows: on the earlier to occur 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 (i) the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) effective date of the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, Separation from Service, A-4 and (ii) the first payment shall include date of the Executive's death (such earlier date, the "Delayed Initial Payment Date"), the Company will (A) pay to the Executive a catch-up payment covering amounts lump sum amount equal to the sum of the payments that the Executive would otherwise have received through the Delayed Initial Payment Date if the commencement of the payments had not been paid during the six-month period but for the application of delayed pursuant to this provision, paragraph, and (B) commence paying 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 applicable payment schedules set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement above. No interest will be administered in accordance with Section 409A of the Code. To the extent that due on 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 amounts 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. deferred. View More Arrow
Found in XENOPORT INC contract
Section 409a. (a) A. Anything in this Agreement Plan to the contrary notwithstanding, if at the time of the Executive's separation Covered Employee's "separation from service service" within the meaning of Section 409A of the Code, the Company determines that the Executive Covered Employee 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 Covered Employee becomes entitled to under this Agreement or otherwise on ac...count of the Executive's separation from service Plan 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 Covered Employee's separation from service, or (B) the Executive's Covered Employee's death. If any such delayed cash payment B. It 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 Plan will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement Plan 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 C. To the extent that any payment pursuant to or benefit described in 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 Plan constitutes "non-qualified deferred compensation" under Section 409A of the Code Code, and all related rules to the extent that such payment or benefit is payable upon the Covered Employee's termination of employment, then such payments or benefits shall be payable only upon the Covered Employee's "separation from service." The determination of whether and regulations when a separation from service has occurred shall be made in order to preserve accordance with the payments and benefits provided hereunder without additional cost to either party. (e) presumptions set forth in Treasury Regulation Section 1.409A-1(h). D. The Company makes no representation or warranty and shall have no liability to the Executive Covered Employee or any other person if any provisions of this Agreement Plan 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. 9 14. Indemnification. To the extent permitted by law, all employees, officers, directors, agents and representatives of the Company shall be indemnified by the Company and held harmless against any claims and the expenses of defending against such claims, resulting from any action or conduct relating to the administration of the Plan, whether as a member of the Administrator or otherwise, except to the extent that such claims arise from gross negligence, willful neglect, or willful misconduct. View More Arrow
Found in Social Capital Suvretta Holdings Corp. I contract
Section 409a. (a) Anything in Notwithstanding any provision of this Agreement to the contrary notwithstanding, if at the time contrary, all provisions of the Executive's separation from service within the meaning of this Agreement are intended to comply with Section 409A of the Code, and the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment applicable Treasury regulations and administrative guidance issued... thereunder (collectively, "Section 409A") or benefit that the Executive becomes entitled to an exemption therefrom and shall be construed and administered in accordance with such intent. Any payments under this Agreement or otherwise on account of the Executive's that may be excluded from Section 409A either as separation pay due to an involuntary separation from service would or as a short-term deferral shall be considered deferred compensation otherwise subject excluded from Section 409A to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application maximum extent possible. For purposes of Section 409A(a)(2)(B)(i) of the Code, such 409A, each installment 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 treated as a separate 21 payment. Any payments to be made under this Agreement upon a termination of Employee's employment shall only be made if such termination of employment constitutes a "separation from service" under Section 409A. (b) To the extent that any right to reimbursement of expenses or payment of any benefit in-kind under this Agreement constitutes nonqualified deferred compensation (within the meaning of Section 409A), (i) any such expense reimbursement shall be made by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after later than the last day of the taxable year following the taxable year in which the such expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect by Employee, (ii) the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. benefit, and (iii) the amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year; provided, that the foregoing clause shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period in which the arrangement is in effect. (c) To Notwithstanding any provision in this Agreement to the extent that contrary, if any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" provided for herein would be subject to additional taxes and interest under Section 409A if Employee's receipt of the Code, and to the extent that such payment or benefit is payable upon not delayed until the Executive's termination earlier of employment, (%3) the date of Employee's death or (%3) the date that is six (6) months after the Termination Date (such date, the "Section 409A Payment Date"), then such payment or benefit shall not be provided to Employee (or Employee's estate, if applicable) until the Section 409A Payment Date. Notwithstanding the foregoing, the Company makes no representations that the payments or and 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 provided under this Agreement will are exempt from, or compliant with, Section 409A and in no event shall any member of the Company Group be administered in accordance liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Employee on account of non-compliance with Section 409A of the Code. 409A.23. Clawback. To the extent required by applicable law or any applicable securities exchange listing standards, or as otherwise determined by the Board (or a committee thereof), amounts paid or payable under this Agreement shall be subject to the provisions of any applicable clawback policies or procedures adopted by the Company, which clawback policies or procedures may provide for forfeiture and/or recoupment of amounts paid or payable under this Agreement. Notwithstanding any provision of this Agreement to the contrary, the Company reserves the right, without the consent of Employee, to adopt any such clawback policies and procedures, including such policies and procedures applicable to this Agreement with retroactive effect.24. Effect of Termination. The provisions of Sections 5, 8-12 and 20 and those provisions necessary to interpret and enforce them, shall survive any termination of this Agreement and any termination of the employment relationship between Employee and the Company. 22 25. Third-Party Beneficiaries. Each member of the Company Group that is not a signatory to this Agreement shall be a third-party beneficiary of Employee's obligations under Sections 7-10 and shall be entitled to enforce such obligations as if a party hereto.26. Severability. If an arbitrator or court of competent jurisdiction determines that any provision of this Agreement (or portion thereof) is ambiguous as to its compliance with Section 409A invalid or unenforceable, then the invalidity or unenforceability of that provision (or portion thereof) shall not affect the Code, the validity or enforceability of any other 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 Agreement, and all related rules other provisions shall remain in full force 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. effect. View More Arrow
Found in SILVERBOW RESOURCES, INC. contract
Section 409a. (a) Anything in Executive and Fairmount intend that the payments and benefits provided under this Agreement comply with the requirements of, or satisfy an exemption from, Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder ("Section 409A") so that any payments and benefits provided by the Agreement do not subject Executive to penalty taxes and interest imposed for noncompliance with Section 409A and the Agreement shall be interpreted in a man...ner that is consistent with this intent. Accordingly, the following rules shall apply with respect to the contrary notwithstanding, if at the time payments and benefits, to be provided to Executive under this Agreement: (a) Each installment of the Executive's payments and benefits provided under this Agreement shall be treated as a "separate payment" for purposes of Section 409A. Neither Fairmount nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A; (b) The reimbursements described in subsection 3(c) shall be treated as exempt "reimbursements and certain other separation from service payments" within the meaning of Treasury Regulation Section 409A 1.409A-1(b)(9)(v), and any reimbursement or payment with respect to such benefits shall be made not later than December 31 of the Code, second calendar year following the Company determines that calendar year in which Executive is terminated; and (c) If, as of the date of Executive's Qualified Termination from Fairmount, Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A, then: (i) Each installment of the Code, then to the extent any payment or benefit that the Executive becomes entitled to payments and benefits due under this Agreement or otherwise that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the Short-Term Deferral Period (as hereinafter defined) 3 shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A. For purposes of this Agreement, the "Short-Term Deferral Period" means the period ending on account the later of the 15th day of the third month following the end of Executive's tax year in which Executive's separation from service would be considered deferred compensation otherwise subject to occurs and the 20 percent additional tax imposed pursuant to Section 409A(a) 15th day of the Code as a result third month following the end of Fairmount's tax year in which Executive's separation from service occurs; and (ii) Each installment of the application of Section 409A(a)(2)(B)(i) of payments and benefits due under this Agreement that is not paid within the Code, such payment Short-Term Deferral Period and that would, absent this subsection, be paid within the six-month period following Executive's "separation from service" from Fairmount shall not be payable and such benefit shall not be provided paid until the date that is the earlier of (A) six months and one day after the Executive's such separation from service, or (B) the service (or, if earlier, Executive's death. If date of death), with any such installments that are required to be 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 being accumulated during the six-month period but for and paid in a lump sum on the application of this provision, date that is six months 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 one 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 and any subsequent installments, if any, being paid in accordance with the presumptions dates and terms set forth in Treasury Regulation herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments and benefits if and to the maximum extent that such installment is deemed to be paid under a "separation pay plan" (within the meaning of Section 1.409A-1(h). (d) The parties intend 409A) that this Agreement will be administered in accordance with Section 409A does not provide for a deferral of compensation by reason 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 application of Treasury Regulation Section 1.409A-2(b)(2). The parties 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). (d) Executive and Fairmount further agree that to make such revisions to this Agreement may be amended, as reasonably requested by either party, and as may be necessary required to fully comply with conform the provisions of the Agreement to the requirements of Section 409A and any regulations or other Internal Revenue Service guidance issued thereunder. Notwithstanding the forgoing, neither Fairmount, its subsidiaries nor any of their directors, officers or employees makes any guarantee with respect to the tax treatment 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 for any tax or penalty imposed on 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. with respect thereto. View More Arrow
Found in FAIRMOUNT SANTROL HOLDINGS INC. contract
Section 409a. (a) Anything in This Agreement is intended to be interpreted and applied so that the payments and benefits set forth herein shall either be exempt from the requirements of Section 409A of the Code, or shall comply with the requirements of Section 409A of the Code. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement to the contrary notwithstanding, if at the time extent such payments constitute a "deferral of the Execut...ive's separation from service compensation" within the meaning of Section 409A of the Code, Code. Notwithstanding anything in this Agreement or elsewhere to the Company determines contrary, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits that the Executive is a "specified employee" constitute "non-qualified deferred compensation" within the meaning of Section 409A(a)(2)(B)(i) 409A of the Code, then to the extent any payment Code upon or benefit that the Executive becomes entitled to under this Agreement or otherwise on account following a termination of the Executive's separation employment unless such termination is also a "separation from service would be considered deferred compensation otherwise subject to service" within the 20 percent additional tax imposed pursuant to Section 409A(a) meaning 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 Code and, for purposes of any 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 Agreement, references to its compliance with Section 409A a "termination," "termination of employment" or like terms shall mean "separation from service" within the Code, the provision shall be read in such a manner so that all payments hereunder comply with meaning of Section 409A of the Code. Each payment pursuant to under 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 (including 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. installment payments) shall be deemed a separate payment. View More Arrow
Found in Trinity Industries Inc contract
Section 409a. (a) Anything in It is the intention of the Parties that this Agreement to be exempt from or comply strictly with the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning provisions of Section 409A of the Code, and Treasury Regulations and other Internal Revenue Service guidance promulgated thereunder (the "Section 409A Rules") and any ambiguity herein shall be interpreted so as to be consistent with the intent of this paragraph. In no event whats...oever shall the Company determines be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A or damages for failing to comply with Section 409A. Notwithstanding anything contained herein to the contrary, all payments and benefits which are payable upon a termination of employment hereunder shall be paid or provided only upon those terminations of employment that constitute a "separation from service" from the Company within the meaning of the 409A Rules (determined after applying the presumption set forth in Treas. Reg. Section 1.09A-1(h)(1)). Further, to the extent the Executive is a "specified employee" within specified employee under the meaning 409A Rules at the time of Section 409A(a)(2)(B)(i) a termination of employment and the deferral of the Code, then to the extent commencement of any payment payments or benefit that the Executive becomes entitled to under this Agreement or benefits 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 payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated recognition of income or additional tax under Section 409A, then the application Company will defer the commencement of Section 409A(a)(2)(B)(i) of any payments or benefits hereunder (without any reduction in payments or benefits ultimately paid or provided to the Code, such payment shall not be payable and such benefit shall not be provided Executive) until the date that is the earlier of (A) at least six (6) months and one day after following the Executive's separation from service, or (B) termination of employment with Montreign (or the earliest date permitted under Section 409A Rules, e.g., immediately upon the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, death), whereupon Montreign will promptly pay the first payment shall include Executive a catch-up payment covering lump-sum amount equal to the cumulative amounts that would have otherwise have been previously paid during to 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 Executive under this Agreement during the period in which such payments or benefits were deferred. Thereafter, the normal schedule for the remaining payments will commence. Notwithstanding anything to the contrary in this Agreement, reimbursement payments shall be provided by the Company or incurred by promptly made to the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, following such submission, but in no event shall any reimbursement be paid after the last day later than December 31st of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount In no event shall the Executive be entitled to any reimbursement payments after December 31st of in-kind benefits provided or reimbursable expenses incurred the calendar year following the calendar year in one taxable year shall not affect which the in-kind benefits to be provided expense was incurred. 11 Additionally, in the event that following the date hereof, Montreign or the expenses eligible for reimbursement in Executive reasonably determines that any other taxable year (except for any lifetime compensation or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not payable under this Agreement may be subject to liquidation or exchange for another benefit. (c) To Section 409A, Montreign and the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and Executive shall work together to the extent that adopt 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 amendments to this Agreement or adopt other policies or procedures (including amendments, policies and procedures with retroactive effect), or take any other commercially reasonable actions necessary or appropriate to (x) exempt 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 compensation and benefits payable under this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with from Section 409A Rules and/or preserve the intended tax treatment of the Code and all related rules and regulations in order to preserve the payments compensation and benefits provided hereunder without additional cost with respect 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 or (y) comply with the requirements of Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Rules. View More Arrow
Found in EMPIRE RESORTS INC contract
Section 409a. (a) Anything in It is intended that all of the severance benefits and other payments payable under this Agreement satisfy, to the contrary notwithstanding, if at greatest extent possible, the time of exemptions from the Executive's separation from service within the meaning application of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning Internal Revenue Code of Section 409A(a)(2)(B)(i) of the Code, then 1986, as amended ("Section 40...9A") provided under Treasury Regulations 1.409A‐1(b)(4), 1.409A‐1(b)(5) and 1.409A‐1(b)(9), and this Agreement will be construed to the greatest 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 possible 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 consistent 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, those provisions, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that not so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A‐2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by either party, the Company at the time of Executive's Separation from Service to be a "specified employee" for purposes of Section 409A(a)(2)(B)(i), and as may be necessary to fully comply with Section 409A if any of the Code and all related rules and regulations payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to preserve avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) the expiration of the six (6)-month period measured from the date of Executive's Separation from Service with the Company, (ii) the date of Executive's death or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Code but do not satisfy an exemption from, first business day following the expiration of such applicable Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Section. applicable agreement. No interest shall be due on any amounts so deferred. View More Arrow
Found in Atreca, Inc. contract
Section 409a. (a) Anything in It is intended that this Agreement to and the contrary notwithstanding, if at payments hereunder are exempt from or comply with the time requirements of the Executive's separation from service within the meaning of Internal Revenue Code, Section 409A of and the Code, Treasury Regulations and guidance promulgated thereunder (collectively, "Section 409A"). In the Company determines event 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 (or portion thereof) provided pursuant to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise is subject to Section 409A, the 20 percent additional tax imposed pursuant to Section 409A(a) applicable terms 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 interpreted in a manner that complies with Section 409A to the fullest extent possible and does not reduce or limit the payment due to Executive. For purposes of Code Section 409A, the Executive's right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Company shall, upon the specific request of Executive, use its reasonable business efforts to in good faith reform such provision to comply with Code Section 409A; provided, that to the maximum extent practicable, the original intent and economic benefit to Executive and the Company or incurred by of the Executive during the time periods set forth in this Agreement. All reimbursements applicable provision shall be paid maintained, and the Company shall have no obligation to make any changes that could create any additional economic cost or loss of benefit to the Company. The Company shall timely use its reasonable business efforts to amend any plan or program in which Executive participates to bring it in compliance with Section 409A. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as soon as administratively practicable, but permitted by Section 409A, (1) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (2) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in no event any other taxable year, provided that the foregoing clause (3) shall not be violated with regard to expenses reimbursed under any reimbursement arrangement covered by Section 105(b) of the Internal Revenue Code solely because such expenses are subject to a limit related to the period the arrangement is in effect; and (4) such payments shall be paid after made on or before the last day of the Executive's 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. THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ ALL OF THE TERMS OF THIS AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS AND CONDITIONS. View More Arrow
Found in Level Brands, Inc. contract
Section 409a. (a) Anything in this Agreement to the contrary notwithstanding, if at the time It is intended that all of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to severance benefits and other payments payable under this Agreement or otherwise on account of the... Executive's separation from service would be considered deferred compensation otherwise subject satisfy, to the 20 percent additional tax imposed pursuant to Section 409A(a) of greatest extent possible, the Code as a result of exemptions from the application of Code Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable 409A provided under Treasury Regulations 1.409A‐1(b)(4) and such benefit shall not be provided until the date that is the earlier of (A) six months 1.409A‐1(b)(5), and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall will be provided by construed to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid greatest extent possible as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, consistent with those provisions, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that not so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Code Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A‐2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by either party, the Company at the time of Executive's Separation from Service (as defined under Treasury Regulation Section 1.409A-1(h)) to be a "specified employee" for purposes of Code Section 6. 409A(a)(2)(B)(i), and as may if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be "deferred compensation", then, solely to the extent necessary to fully comply with avoid adverse personal tax consequences under Section 409A such payments shall not be provided to Executive prior to the earliest of (i) the expiration of the Code and all related rules and regulations in order to preserve six-month period measured from the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation date of Executive's Separation from Service with the Company, (ii) the date of Executive's death 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 (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Code but do not satisfy an exemption from, first business day following the expiration of such applicable delay period, all payments deferred pursuant to this Section 9 shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Section. applicable agreement. No interest shall be due on any amounts so deferred. View More Arrow
Found in 2 Contracts from Tracon Pharmaceuticals, Inc.
Section 409a. A new Section 18 is added as follows: "18. 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 If 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 obligation under this Agreement or otherwise arises on accoun...t of the Executive's separation from service would be considered deferred compensation otherwise subject while the Executive is a "specified employee" (as defined under Section 409A of the Internal Revenue Code, and the guidance thereunder ("Section 409A")) of a public company, any payment of "deferred compensation" (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect 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 exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is the earlier of (A) scheduled to be paid within six (6) months and one day after such separation from service shall be paid within 15 days 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 end of the six-month period but for beginning on the application date of this provision, and such separation from service or, if earlier, within 15 days after the balance appointment of the installments shall be payable personal representative or executor of the Executive's estate following his death. (b) "Termination of employment," "resignation" or words of similar import, as used in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible this Agreement means, for reimbursement purposes of any payments under this Agreement that are payments of deferred compensation subject to Section 409A, the Executive's "separation from service" as defined in Section 409A. For purposes of Section 409A, the right to a series of installment payments under this Agreement shall be provided by treated as a right to a series of separate payments. (c) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, the Company Executive, as specified under this Agreement, such reimbursement of expenses or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements provision of in-kind benefits shall be paid as soon as administratively practicable, but in no event shall any subject to the following conditions: (1) the expenses eligible for reimbursement be paid after or the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year (except year, except for any lifetime or other aggregate limitation applicable medical reimbursement arrangement providing for the reimbursement of expenses referred to medical expenses). Such in Section 105(b) of the Internal Revenue Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit." 8. No Other Amendment. Except as modified by this Amendment, 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 the Employment Agreement may be amended, as reasonably requested by either party, is in full force and as may be necessary effect according 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. its terms. View More Arrow
Found in 2 Contracts from Freshpet, Inc.