This page contains Section 409a clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Section 409a. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp
...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Variations of a "Section 409a" Clause from Business Contracts
Section 409a.
(a) Anything in Payments pursuant to this Agreement
are intended to
the contrary notwithstanding, if at the time of the Executive's separation comply with or be exempt from
service within the meaning of Section 409A of the
Code, Internal Revenue Code and accompanying regulations and other binding guidance promulgated thereunder ("Section 409A"), and the
Company determines that the Executive is a "specified employee" within the meaning provision of
Section 409A(a)(2)(B)(i) of the Code, then to th...e extent any payment or benefit that the Executive becomes entitled to this Agreement will be administered, interpreted and construed accordingly. 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 purpose 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 by treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a "separation 5 from service" under Section 409A. To 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 extent that any reimbursement of expenses or in-kind benefits constitutes "deferred compensation" under Section 409A, (i) such reimbursement or benefit will be paid after the last day provided no later than December 31 of the taxable year following the taxable year in which the expense was incurred. The incurred; (ii) the amount of in-kind benefits provided or reimbursable expenses incurred reimbursed in one taxable year shall will not affect the in-kind benefits to be provided or the expenses amount eligible for reimbursement in any other taxable subsequent year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such and (iii) the right to reimbursement of expenses or in-kind benefits is may not subject to liquidation be liquidated or exchange exchanged for another any other benefit. (c) To Notwithstanding the extent foregoing, the Company makes no representations 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 under this Agreement comply with Section 409A and in no event shall the Company makes no representation or warranty and shall have no liability to the Executive be liable for all or any portion of any taxes, penalties, interest or other person if any provisions expenses that may be incurred by the Employee on account of this Agreement are determined to constitute deferred compensation subject to non-compliance with 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.
To the extent (a)
Anything any payments or benefits to which you become entitled under this agreement, or under any other agreement or Company plan, in
this Agreement connection with your termination of employment with the Company constitute deferred compensation subject to
Section 409A of the
contrary notwithstanding, if Code and (b) you are deemed at the time of
the Executive's separation from service within the meaning such termination of
Section 409A of the Code, the Company determines that ...the Executive is employment to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) 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 then such payments shall not be made or commence until the earliest of (i) the expiration of the six (6)-month period measured from the date of your "separation from service" (as such term is at the time defined in Treasury Regulations under Section 409A of the Code) from the Company; or (ii) the date of your death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you, including (without limitation) the additional twenty percent (20%) tax for which you would otherwise be liable under Section 409A(a)(l)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that such payment period (whether in a single sum or benefit is payable upon in installments) in the Executive's absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Any termination of employment, then such payments or benefits shall be payable only upon the Executive's your 6 employment is intended to constitute a "separation from service." The determination of whether service" and when a separation from service has occurred shall will be made in accordance determined consistent with the presumptions set forth rules relating to a "separation from service" as such term is defined in Treasury Regulation Section 1.409A-1(h). (d) The parties intend 1.409A-1. It is intended that this Agreement will be administered in accordance with each installment of the payments provided hereunder constitute separate "payments" for purposes of Treasury Regulation Section l .409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code. Code (and any state law of similar effect) provided under Treasury Regulations Section l.409A-l(b)(4) (as a "short-term deferral") and Section l.409A-l(b)(9) (as a "separation pay due to involuntary separation"). To the extent that any provision of this Agreement agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall will be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant Except as otherwise expressly provided herein, to this Agreement the extent any expense reimbursement or the Restrictive Covenants Agreement provision of any in-kind benefit under this 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 be subject to Section 409A of the Code but do not satisfy an exemption from, Code, the amount of any such expenses eligible for reimbursement, or the conditions of, provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year, in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such Section. expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
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Section 409a.
(a) Anything in This Agreement is intended to comply with Section 409A of the Code and will be interpreted accordingly. References under this Agreement to
Executive's termination of employment shall be deemed to refer to the
contrary notwithstanding, if at the time of the Executive's separation date upon which Executive has experienced a "separation from
service service" within the meaning of Section 409A of the
Code, Code. Notwithstanding anything herein to the contrary, (i) if at the time of E...xecutive's separation from service with the Company determines that the Executive is a "specified employee" within as defined in Section 409A of the meaning Code (and any related regulations or announcements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable hereunder or payable under any other compensatory arrangement between Executive and the Company or any of its affiliates as a result of such separation from service is necessary in order to prevent any accelerated or additional tax under Section 409A(a)(2)(B)(i) 409A of the Code, then to the extent any payment or benefit that Company will defer the Executive becomes entitled to under this Agreement or otherwise on account commencement of the Executive's separation from service would be considered deferred compensation otherwise subject payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided 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 Executive) until the date that is the earlier of (A) six months and one day after the following Executive's separation from service, service (or the earliest date as is permitted under Section 409A of the Code), at which point all payments deferred pursuant to this Section 21 shall be paid to Executive in a lump sum and (ii) if any payments of money 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 other benefits due to Executive hereunder could cause the application of this provision, and the balance an accelerated or additional tax under Section 409A of the installments Code, such payments or other benefits shall be payable deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in accordance with their original schedule. (b) All a manner that does not cause such an accelerated or additional tax. To the extent any reimbursements or in-kind benefits provided and expenses eligible for reimbursement due to Executive 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 constitute "deferred compensation" under Section 409A of the Code, and any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(l)(iv). Additionally, to the extent 11 that Executive's receipt of any in-kind benefits from the Company or its affiliates must be delayed pursuant to this Section 21 due to her status as a "specified employee," Executive may elect to instead purchase and receive such payment or benefit is payable upon benefits during the Executive's termination period in which the provision of employment, then benefits would otherwise be delayed by paying the Company (or its affiliates) for the fair market value of such payments or benefits (as determined by the Company in good faith) during such period. Any amounts paid by Executive pursuant to the preceding sentence shall be payable only upon reimbursed to Executive as described above on the Executive's "separation from service." The determination of whether and when a date that is six months following her separation from service has occurred service. Each payment made under this Agreement shall be made in accordance with designated as a "separate payment" within 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 meaning of Section 409A of the Code. To The Company shall consult with Executive in good faith regarding the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A implementation 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 Section 21, provided that neither the Company nor any of its employees or representatives shall have any liability to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Executive with respect thereto.
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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 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 a. This 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 will be interpreted in order a manner intended 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 comply with Code Section 409A. Any provision that would cause this Agreement or any other person if any provisions of this Agreement are determined payment hereof to constitute deferred compensation subject fail to satisfy Code Section 409A of the Code but do shall have no force or effect until amended to the minimum extent required to comply with Code Section 409A, which amendment may be retroactive to the extent permitted by Code Section 409A. A termination of employment shall not satisfy be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits that may be considered "deferred compensation" under Code Section 409A (after taking into account all exclusions applicable to such payments or benefits under Code Section 409A) upon or following a termination of employment unless such termination is also a "Separation from Service" within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a "retirement," "termination," "termination of employment" or like terms shall mean Separation from Service. b. Any payment scheduled to be made under this Agreement that may be considered "deferred compensation" under Code Section 409A (after taking into account all exclusions applicable to such payments or benefits under Code Section 409A), that are otherwise due on or within the six-month period following the Transition Date will accrue during such six-month period and will instead become payable in a lump sum payment on the first business day period following such six month period. Furthermore, if any other payments of money or other benefits due to Executive under this Agreement could cause the application of an exemption from, accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A, or otherwise such payment or other benefits shall be restructured, to the conditions of, extent possible, in a manner, determined by the Company, that does not cause such Section. an accelerated or additional tax. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute "deferred compensation" under Code Section 409A (after taking into account all exclusions applicable to such payments or benefits under Section 409A), any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). c. Notwithstanding any contrary provision herein, Executive's right to any payment (including each installment payment) under this Agreement shall be treated as a "separate payment" within the meaning of Code Section 409A. d. The Company shall consult with Executive in good faith regarding the implementation of the provisions of this section; provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. 8 11. NO ADMISSION OF LIABILITY. Nothing in this Agreement will constitute or be construed in any way as an admission of any liability or wrongdoing whatsoever by the Company or Executive.
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Section 409a. (a)
Anything The Agreement is intended to comply with the requirements of section 409A of the Code or an exemption and shall in
this all respects be administered in accordance with section 409A. Severance payments shall be made under the section 409A "separation pay" exception, to the maximum extent possible, and then under the section 409A "short-term deferral" exception or another applicable exception. Notwithstanding anything in the Agreement to the
contrary notwithstanding, if at the time co...ntrary, distributions upon termination of the Executive's separation employment may only be made upon a "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 service" as determined under section 409A. Each payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid treated as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that section 409A. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. In no event shall the timing of the Participant's execution of the Release, directly or indirectly, result in the Participant designating the calendar year of payment. All reimbursements and in-kind benefits provided under this Agreement may shall be amended, as reasonably requested by either party, and as may be necessary to fully comply made or provided in accordance with Section the requirements of section 409A of the Code and all related rules and regulations in order to preserve Code. In 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 event the Executive or any other person if any provisions parties determine that the terms of this Agreement are determined do not comply with section 409A, they will negotiate reasonably and in good faith to constitute deferred compensation subject amend the terms of this Agreement such that it complies (in a manner that attempts to Section minimize the economic impact of such amendment on the Executive and the Company) within the time period permitted by the applicable Treasury Regulations. (b) Notwithstanding anything in the Agreement to the contrary, if required by section 409A of the Code, any amount that is considered deferred compensation under this Agreement and that is required to be postponed pursuant to section 409A, which shall include certain of the payments under Section 4(b)(3) (other than upon the Executive's death), shall be postponed for a period of six months after separation from service, as required by section 409A. The accumulated postponed amount shall be paid with interest at the applicable federal rate as provided under section 7872(f)(2)(A) of the Code but do not satisfy an exemption from, or in a lump sum payment within ten days after the conditions of, such Section. end of the six month period. If the Executive dies during the postponement period prior to the payment of the postponed amount, the amounts withheld on account of section 409A shall be paid to the personal representative of the Executive's estate within 60 days after the date of his death.
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Section 409a.
(a) Anything 19.1 It is the intention of the Company 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 Company has made no representations as to the
contrary notwithstanding, ...if at the time treatment of the compensation and benefits provided in this Agreement and the Executive has been advised to obtain their own tax advice. 19.2 Each amount or benefit payable pursuant to this Agreement shall be deemed a separate payment for purposes of Section 409A. 19.3 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. 19.4 Notwithstanding anything in this Agreement to the contrary, in the event the stock of the Code, the Company determines that is publicly traded on an established securities market or otherwise and the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) 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 (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 Company 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 Company for the benefit of the Executive. 6 19.5 Any reimbursement 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 of the conditions of, such Section. Company, as applicable.
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Section 409a.
(a) Anything in The payments and benefits under this Agreement
are intended to
the contrary notwithstanding, if at the time comply with or be exempt from Section 409A of the
Executive's separation Code, and the regulations and guidance promulgated thereunder (collectively, "Section 409A") and this Agreement shall be interpreted and construed in a manner intended to comply therewith. For purposes of this Agreement, Executive will be considered to have experienced a termination of employment only ...if Executive has a "separation from service service" with the Company and all of its controlled group members within the meaning of Section 409A 409A. Whether Executive has a separation from service will be determined based on all of the Code, facts and circumstances and in accordance with the guidance issued under Section 409A. Each payment under this Agreement, including each installment payment, shall be considered a separate and distinct payment. For purposes of this Agreement, each payment is intended to be excepted from Section 409A to the maximum extent provided as follows: (i) each payment made within the applicable 21⁄2 month period specified in Treas. Reg. 1.409A-1(b)(4) is intended to be excepted under the short-term deferral exception; (ii) post-termination medical benefits are intended to be excepted under the medical benefits exception as specified in Treas. Reg. 1.409A-1(b)(9)(v)(B); and (iii) to the extent payments are made as a result of an involuntary separation, each payment that is not otherwise excepted under the short-term deferral exception or medical benefits exception is intended to be excepted under the involuntary pay exception as specified in Treas. Reg. 1.409A-1(b)(9)(iii). With respect to payments subject to Section 409A (and not excepted therefrom), if any, it is intended that each payment is paid on a permissible distribution event and at a specified time consistent with Section 409A. Neither the Company determines 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. Executive shall have no right to designate the date or any payment under this Agreement. If the sixty (60) day period following separation from service for which severance payments are to commence begins in one calendar year and ends in a second calendar year, the portion of such payments that are otherwise payable in the first calendar year will be delayed and commence to be paid in a lump sum within the remainder of the sixty (60) day period that occurs in the second 18 calendar, but only (i) with respect to the portion of such amounts that are payable within such sixty (60) day period that constitute deferred compensation subject to Section 409A and (ii) to the extent no additional delay is required pursuant to Section 23(c) below. If Executive is a "specified employee" within (as that term is used in Section 409A and regulations and other guidance issued thereunder) on the meaning date of Section 409A(a)(2)(B)(i) of the Code, then to the extent Executive's separation from service, any payment or benefit that the Executive becomes entitled to benefits payable under this Agreement or otherwise on account of the Executive's separation from service would be considered that constitute non-qualified 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 delayed until the date that is the earlier of (A) six months and one (i) the first business day after following the six-month anniversary of the date of Executive's separation from service, or (B) (ii) the date of Executive's death. death, but only to the extent necessary to avoid the adverse tax consequences and penalties under Section 409A. On the earlier of (x) the first business day following the six-month anniversary of the date of Executive's separation from service, or (y) Executive's death, the Company shall pay Executive (or Executive's estate or beneficiaries) a lump-sum payment equal to all payments deferred pursuant to the preceding sentence. 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 reimbursements or in-kind benefits provided and expenses eligible for reimbursement under this Agreement are subject to Section 409A, the following rules 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 apply: (i) in no event shall any such reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The incurred; (ii) the amount of in-kind benefits provided or such reimbursable expenses incurred incurred, or the provision of in-kind benefits, in one taxable tax year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement or the provision of in-kind benefits in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such tax year; and (iii) the right to such reimbursement for expenses or provision of 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. benefit.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, if at the time of the Executive's separation in this Agreement, no Deferred Compensation Separation Benefits payable under this Agreement will be considered due or payable until and unless Executive has a "separation from
service service" within the meaning of Section 409A of the
Code, U.S. Internal Revenue Code of 1986, as amended and the
Company determines that final regulations and any guidance promulgate...d under Section 409A, as each may be amended from time to time (together, "Section 409A"). Notwithstanding anything to the contrary in this Agreement, if Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of the Code, Executive's "separation from service" other than due to Executive's death, then any severance benefits payable pursuant to the extent any payment or benefit that the Executive becomes entitled to under this Agreement and any other severance payments or otherwise on account of the Executive's separation from service would benefits, that in each case when considered together may be considered deferred compensation under Section 409A (together, the "Deferred Compensation Separation Benefits") and are otherwise subject due to Executive on or within the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as six (6) 7 month period following Executive's "separation from service" will accrue during such six (6) month period and will instead become payable in a result of the application of Section 409A(a)(2)(B)(i) of the Code, such lump sum payment shall not be payable and such benefit shall not be provided until on the date that is the earlier of (A) six (6) months and one (1) day after following the date of Executive's separation "separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall service." All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with their original schedule. (b) All in-kind benefits provided the payment schedule applicable to each payment or benefit. Each payment and expenses eligible for reimbursement benefit payable under this Agreement shall be provided by is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Company or incurred by Treasury Regulations. (b) Notwithstanding anything to the Executive during the time periods set forth contrary in this Agreement. All reimbursements shall Agreement, if Executive dies following her "separation from service" but prior to the six (6) month anniversary of the date of her "separation from service," then any Deferred Compensation Separation Benefits delayed in accordance with this Section will be paid payable in a lump sum as soon as administratively practicable, practicable after the date of Executive's death, but not later than ninety (90) days after the date of Executive's death, and all other Deferred Compensation Separation Benefits will be payable in no event shall any reimbursement accordance with the payment schedule applicable to each payment or benefit. (c) Payments reimbursable under Section 4 of this Agreement for attorney's fees incurred in connection with the review and documentation of Executive's exit arrangements upon termination of her employment may not be paid after incurred beyond the last day of the taxable second calendar year following the taxable calendar year in which Executive's separation from service occurred, and will be reimbursed to (or directly paid on behalf of) Executive no later than the expense was incurred. The amount last day of in-kind benefits provided or reimbursable expenses incurred the third calendar year following the calendar year in one taxable year shall not affect which Executive's separation from service occurred. (d) It is the in-kind intent of this Agreement to comply with the requirements of Section 409A so that none of the severance payments and 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 subject to the additional tax imposed under Section 409A, and any ambiguities in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as will be interpreted to its compliance with Section 409A of the Code, the provision shall be read so comply. The Company and Executive agree to work together in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or the Restrictive Covenants Agreement is intended desirable to constitute a separate payment for purposes avoid imposition 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 any additional tax or income recognition under Section 409A of the Code and all related rules and regulations in order prior to preserve the payments and benefits provided hereunder without additional cost actual payment 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. Executive.
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Section 409a.
(a) Anything in To the extent applicable, it is intended that this Agreement
to comply 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, Code ("Section 409A"), including any regulations, or any other formal guidance, promulgated with respect to such Section by the
Company determines U.S. Department of the Treasury or the Internal Revenue Service. This Agreement shall be administered and interpre...ted in a manner consistent with this intent. Consistent with that intent, and to the Executive is extent required under Section 409A for payments that are to be made in connection with a termination of employment, "termination of employment" shall be limited to such a termination that constitutes a "separation from service" under Section 409A. Notwithstanding any provision of this Agreement to the contrary, if the Employee constitutes a "specified employee" within (as defined in Section 409A) on the meaning of Section 409A(a)(2)(B)(i) date of the Code, Employee's separation from service and if any portion of the payments to be received by the Employee upon a termination of employment would constitute a "deferral of compensation" subject to Section 409A, then to the extent any payment or benefit that the Executive becomes entitled necessary 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 comply with Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering 409A, amounts that would otherwise have been paid be payable pursuant to this Agreement during the six-month period but for immediately following Employee's termination of employment will instead be paid or made available on the earlier of (i) the first business day of the seventh month after the date of Employee's termination of employment, and (ii) the Employee's death. For purposes of application of this provision, and Section 409A, to 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 extent applicable, each payment made under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. treated as a separate payment. All reimbursements and in-kind benefits provided under this Agreement that constitute "nonqualified deferred compensation" within the meaning of Code Section 409A shall be paid as soon as administratively practicable, but made or provided in accordance with Code Section 409A, including, without limitation, that (i) in no event shall any reimbursement reimbursements by the Employer under this Agreement be paid after made later than the last day end of the taxable calendar year next following the taxable calendar year in which the expense was incurred. The applicable fees and expenses were incurred; (ii) the amount of reimbursements or in-kind benefits provided that the Employer is obligated to pay or reimbursable expenses incurred provide in one taxable any given calendar year shall not affect the reimbursements or in-kind benefits that the Employer is obligated to pay or provide in any other calendar year; (iii) the Employee's right to have the Employer pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit and (iv) the reimbursements paid, or the in-kind benefits to be provided or provided, shall be determined pursuant to 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 terms of the Code, applicable benefit plan, policy or agreement and shall be limited to the extent that such payment or benefit is payable upon Employee's lifetime and 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 lifetime 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. Employee's eligible dependents.
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Section 409a.
(a) Anything in The amounts payable pursuant to this Agreement
are intended to be exempt from section 409A of the Code and related U.S. treasury regulations or official pronouncements ("Section 409A") and will be construed in a manner that is compliant with such exemption; provided, however, if and to the extent that any compensation payable under this Agreement is determined to be subject to Section 409A, this Agreement will be construed in a manner that will comply with Section 409A, and provi...ded further, however, that no person connected with this Agreement in any capacity, including but not limited to the Company and its affiliates, and their respective directors, officers, agents and employees, makes any representation, commitment or guarantee that any tax treatment, including but not limited to, federal, state and local income, estate and gift tax treatment, will be applicable with respect to any amounts payable or benefits provided under this Agreement. Notwithstanding any provision to the contrary notwithstanding, in this Agreement, if at Executive is deemed on the time Termination Date or expiration of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is Term to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, 409A, then to the extent any payment or benefit that the Executive becomes entitled to payments and benefits under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise that are subject to Section 409A and paid by reason of a termination of employment will be made or provided on the 20 percent additional tax imposed pursuant to Section 409A(a) later of (a) 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 date set forth in this Agreement or (b) the date that is the earlier earliest of (A) six months and one day after (i) the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during expiration of the six-month period but for measured from the application of this provision, and the balance Termination Date or expiration of the installments Term, or (ii) the date of Executive's death (the "Delay Period"). Payments and benefits subject to the Delay Period will be paid or provided to Executive without interest for such delay. The terms "termination of employment" and "separate from service" as used throughout this Agreement refer to a "separation from service" within the meaning of Section 409A. 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 payable in accordance with their original schedule. (b) All in-kind benefits excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided and expenses eligible for reimbursement under this Agreement shall be treated as a separate payment. - 11 - 12. Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Executive is a "disqualified individual" (as defined in Section 280G(c) of the Code), and the payments and benefits provided by for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or incurred by any of its affiliates, would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Executive during Code), then the time periods set forth payments and benefits provided for in this Agreement. All reimbursements Agreement shall be paid as soon as administratively practicable, but either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Executive's "base amount" (as defined in no event shall any reimbursement be paid after the last day Section 280G(b)(3) of the taxable year following Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the taxable year excise tax imposed by Section 4999 of the Code or (b) paid in which full, whichever produces the expense was incurred. better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The amount reduction of in-kind payments and benefits provided hereunder, if applicable, shall be made by reducing, first, payments or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or paid in cash hereunder in the expenses eligible for reimbursement order 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 which such payment or benefit is payable upon would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the Executive's termination of employment, then extent necessary, through to such payments payment or benefits shall benefit that would be payable only upon the Executive's "separation from service." made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. 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 whether any such reduction in the amount 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 is necessary shall be made by the Company makes no representation in good faith. If a reduced payment or warranty benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a "parachute payment" exists, exceeds one dollar ($1.00) less than three times Executive's base amount, then Executive shall have no liability immediately repay such excess to the Executive Company upon notification that an overpayment has been made. Nothing in this Section 12 shall require the Company to be responsible for, or have any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to liability or obligation with respect to, Executive's excise tax liabilities under Section 409A 4999 of the Code but do not satisfy an exemption from, or the conditions of, such Section. Code.
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