This page contains Section 409a clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Section 409a. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp
...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Variations of a "Section 409a" Clause from Business Contracts
Section 409a. (a)
Anything in Notwithstanding any provisions of this Agreement to the
contrary notwithstanding, contrary, 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 (within the meaning of Section
409A(a)(2)(B)(i) 409A and determined pursuant to procedures adopted by the Company) at the time of his separation from service (within the meaning of Section 409A) and if any porti...on of the Code, then payments or benefits to the extent any payment or benefit that be received by the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's upon separation from service would be considered deferred compensation under Section 409A, amounts that would otherwise subject to the 20 percent additional tax imposed be payable pursuant to Section 409A(a) of this Agreement during 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 six-month period immediately following 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 service (the "Delayed Payments") and benefits that would otherwise have been paid be provided pursuant to this Agreement (the "Delayed Benefits") during the six-month period but immediately following the Executive's separation from service (such period, the "Delay Period") shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date of the Executive's separation from service or (ii) Executive's death (the applicable date, the "Permissible Payment Date"). The Company shall also reimburse the Executive for the application after-tax cost incurred by the Executive in independently obtaining any Delayed Benefits (the "Additional Delayed Payments"). (b) With respect to any amount 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 Section 6(a), such expenses shall be reimbursed by the Company within thirty (30) calendar days following the date on which the Company receives the applicable invoice from the Executive but in no event later than December 31 of the year following the year in which the Executive incurs the related expenses; provided, that with respect to reimbursement relating to the Additional Delayed Payments, such reimbursement shall be made on the Permissible Payment Date. In no event shall the reimbursements or in-kind benefits to 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 amount of reimbursements or 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 year, nor shall the Executive's right to reimbursement or in-kind benefits is not be subject to liquidation or exchange for another benefit. (c) To the extent that any Each payment or benefit described in under 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 considered a "separate payment" and not 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 series 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 Section 409A. (d) Any Delayed Payments shall bear interest at the United States 5-year Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may Rate plus 2%, which accumulated interest shall 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 paid to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of on the Code but do not satisfy an exemption from, or the conditions of, such Section. Permissible Payment Date.
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Section 409a. (a)
Anything in To the extent applicable, it is intended that this Agreement
comply with the provisions of Section 409A of the Code. This Agreement will be administered and interpreted in a manner consistent with this intent. The Company agrees to take all reasonable steps to ensure that Employee shall not be subject to any penalties with respect to any payments received hereunder. In the event that any guidance is issued by the Internal Revenue Service, or if a judicial decision is rendered, to
... the contrary notwithstanding, if effect that arrangements similar to this Agreement do not satisfy the requirements of Section 409A, the Company and Employee agree to take whatever reasonable actions may be necessary at such time in order to ensure that (i) the time payments under this Agreement shall be in compliance with Section 409A and (ii) the Employee shall not be subject to any penalty under Section 409A with respect to the Employee's receipt of such payments. (b) Notwithstanding anything contained herein to the Executive's separation contrary, any payments on account of a termination of employment that are subject to Section 409A shall not be made until Employee would be considered to have incurred a "separation from service service" from the Company within the meaning of Section 409A of 409A. To the Code, extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during the Company determines that the Executive six-month period immediately following Employee's separation from service shall, if Employee is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's Employee's separation from service would service, instead be considered deferred compensation otherwise subject to paid on the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until first business day after the date that is the earlier of (A) six months and one day after the Executive's following Employee's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application service (or Employee's death, if earlier). (c) For purposes of this provision, and the balance of the installments Agreement, each amount to be paid or benefit to be provided to Employee pursuant to this Agreement shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and construed as a separate identified payment for purposes of Section 409A. (d) With respect to expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day terms of the taxable year following Agreement, (i) the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable such expenses incurred eligible for reimbursement in one any taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other another taxable year (except for (ii) any lifetime or other aggregate limitation applicable reimbursements of such expenses shall be made no later than the end of the calendar year following the calendar year in which the related expenses were incurred, except, in each case, to medical expenses). Such the extent that the right to reimbursement or in-kind benefits does not provide for a "deferral of compensation" within the meaning of Section 409A; provided, however that with respect to any reimbursements for any taxes to which Employee becomes entitled under the terms of this Agreement, the 16 payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Employee remits the related taxes; and (iii) the right to reimbursement is not subject to liquidation or exchange for another any other benefit. (c) To the extent that any payment or benefit described (d) Nothing in this Agreement constitutes "non-qualified deferred compensation" under Section 409A shall be construed as a guarantee of the Code, and any particular tax treatment to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits Employee. The Employee shall be solely responsible for the tax consequences with respect to all amounts payable only upon under this Agreement, and in no event shall 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 Company have any responsibility or liability if this Agreement will be administered in accordance with does not meet any applicable requirements of Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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Section 409a.
(a) Anything 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 provisions of
Section 409A(a)(2)(B)(i) of the Code, then to t...he 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 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 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 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 year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such subsequent year; 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.
(a) Anything This Agreement is intended to comply with Section 409A or an exemption thereunder and shall be construed and administered in
accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement
may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to
the contrary notwithstandi...ng, if at the time of the Executive's an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. For purposes of determining the timing of any payments to be made under this Agreement by reference to Executive's termination of employment, "termination" and "termination of employment" shall refer to Executive's "separation from service" as defined for purposes of Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A. 16 Notwithstanding any other provision of this Agreement, if any payment or benefit provided to the Executive in connection with her termination of employment is determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A of the Code, the Company determines that and the Executive is determined to be a "specified employee" within the meaning of as defined in Section 409A(a)(2)(B)(i) of the Code, 409A(a)(2)(b)(i), then to the extent any such payment or benefit that shall be paid on the Executive becomes entitled first payroll date to under this Agreement or otherwise on account occur following the six-month anniversary 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) Termination Date (the "Specified Employee Payment Date"). The aggregate 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 payments that would otherwise have been paid during before the six-month period but for the application of this provision, and the balance of the installments Specified Employee Payment Date shall be payable paid to the Executive in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay 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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Section 409a.
(a) Anything in The intent of the parties is that payments and benefits under this Agreement
shall comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder (collectively, "Code Section 409A"), and, accordingly, all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. If you notify Company (with specificity as to the
contrar...y notwithstanding, if at reason therefore) that you believe that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause you to incur any additional tax or interest under Code Section 409A and Company after good faith review concurs with such belief or Company (without any obligation whatsoever to do so) independently makes such determination, Company shall, after consulting with you, reform such provision to try to comply with Code Section 409A through good faith modifications to the time minimum extent reasonably appropriate to comply with the requirements of Code Section 409A to the extent applicable. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to you and Company of the Executive's applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall Company be liable for any additional tax, interest or penalties that may be imposed on you by Code Section 409A or any damages for failing to comply with Code Section 409A. Subject to the terms of this Agreement, 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 constituting deferred compensation subject to 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 "termination" or "termination of employment" or like references shall mean separation from service service. If you are deemed on the date of termination of your employment to be a "specified employee," within the meaning of that term under Section 409A 409A(a)(2)(B) of the Code, Internal Revenue Code and using the identification methodology selected by Company determines that from time to time, or if none, the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, default methodology, then with regard to the extent any payment or benefit that the Executive becomes entitled is required to under this Agreement or otherwise on account be delayed in compliance with Section 409A(a)(2)(B) 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 Internal Revenue Code, such payment shall not be payable and such or benefit shall not be made or provided until the date that is prior to the earlier of (A) (i) the expiration of the six months and one day after (6) month period measured from the Executive's date of your separation from service, service or (B) (ii) the Executive's date of your death. If any such delayed cash payment is otherwise payable on an installment basis, On 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 day of the seventh (7th) month following the date of the your separation from service or, if earlier, on the date of your death, all payments delayed pursuant to this Section 13 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be payable paid or reimbursed to you in accordance with their original schedule. (b) All in-kind a lump sum, and any remaining payments and benefits provided and expenses eligible for reimbursement due under this Agreement shall be paid or provided by in accordance with 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 normal payment dates specified for them herein. 8 C. With regard to 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 provision herein that provides for reimbursement in any other taxable year (except for any lifetime of expenses or other aggregate limitation applicable to medical expenses). Such in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To benefit, and (ii) the extent 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 this clause (ii) shall not be violated with regard to expenses reimbursed under any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under arrangement covered by Section 409A 105(b) of the Code, and Internal Revenue Code solely because such expenses are subject to a limit related to the extent that such payment or benefit period the arrangement is payable upon the Executive's termination of employment, then in effect, and (iii) 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 on or before 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 last day of the Code. To calendar year following the extent that any provision of calendar year in which the expense occurred. If under this Agreement Agreement, an amount is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read paid in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement two (2) or the Restrictive Covenants Agreement is intended to constitute a separate payment more installments, for purposes of Treasury Regulation Code Section 1.409A-2(b)(2). The parties agree that 409A, each installment shall be treated as a separate payment. Whenever a payment under this Agreement may specifies a payment period with reference to a number of days (e.g., "payment shall be amended, as reasonably requested by either party, and as may made within thirty (30) days following the date of termination"), the actual date of payment within the specified period shall be necessary to fully comply with Section 409A within the sole discretion of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Company.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that Notwithstanding any provision of this Agreement is ambiguous as to its compliance with Section 409A the contrary, all provisions of the Code, the provision shall be read in such a manner so that all payments hereunder this Agreement are intended to comply with Section 409A of the Code. Each payment pursuant to Internal Revenue Code of 1986, as amended, and the applicable Treasury regulations and administrative guidance issued thereunder (collectively, "Section 409A") or an exemption therefrom and shall be construed and administered in accordance with such intent. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an -15- involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the Restrictive Covenants maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement is intended to constitute shall be treated as a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that payment. Notwithstanding any provision in this Agreement may to the contrary, if any payment or benefit provided for herein would be amended, as reasonably requested by either party, subject to additional taxes and as may be necessary to fully comply with interest under Section 409A if Executive's receipt of such payment or benefit is not delayed until the Code and all related rules and regulations in order earlier of (i) the date of Executive's death or (ii) the date that is six months after the Termination Date (such date, the "Section 409A Payment Date"), then such payment or benefit shall not be provided to preserve Executive (or Executive's estate, if applicable) until the Section 409A Payment Date. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of under this Agreement are determined to constitute deferred compensation subject to exempt from, or compliant with, Section 409A and in no event shall the Company or any of the Code but do not satisfy an exemption from, its Affiliates be liable for all or the conditions of, such Section. any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive on account of non-compliance with Section 409A.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, in this Agreement, if
at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section
409A(a)(2)(B)(i) 409A of the
Code, Code and the final regulations and any guidance promulgated thereunder ("Section 409A") at the time of Executive's termination (other than due to death),... then to the extent any payment or benefit that the Executive becomes entitled payments upon a termination of employment are determined to be "nonqualified deferred compensation" under this Agreement Section 409A, such severance amounts, together with any other severance payments or otherwise on account of the Executive's separation from service would be benefits that are considered deferred compensation under Section 409A (together, the "Deferred Compensation Separation Benefits") that would 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 within the first six (6) months following Executive's termination of employment, will instead become payable in a lump sum on the first payroll date that occurs on or after the date that is the earlier of (A) six (6) months and one (1) day after following (x) the date of Executive's separation from service, termination of employment or (B) (y) the date of 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 death, if earlier. 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 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 payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulation Regulations. (b) Any amount paid under the Agreement that satisfies the requirements of the "short- term deferral" rule set forth in Section 1.409A-2(b)(2). The parties agree that 1.409A-1(b)(4) of the Treasury Regulations shall not constitute Deferred Compensation Separation Benefits for purposes of clause (a) above. (c) Any amount paid under this Agreement may be amended, that qualifies as reasonably requested by either party, and a payment made as may be necessary a result of an involuntary separation from service pursuant to fully Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit (as defined below) will not constitute Deferred Compensation Separation Benefits for purposes of clause (a) above. (d) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the Code and all related rules and regulations in order to preserve the severance payments and benefits to be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. Executive or any other person if any provisions of and the Company agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are determined necessary, appropriate or desirable to constitute deferred compensation avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A. However, the Company is under no obligation to reimburse or otherwise make Executive whole for any amounts that may be subject to the additional tax or early income recognition under Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A.
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Section 409a. (a)
Anything in 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, Internal Revenue Code of 1986 (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 re...gulations 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 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 Employee's 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, (i) the date of Employee's death or (ii) the date that is six (6) months after the Termination Date (such date, the "Section 409A Payment Date"), then such payments payment or benefits benefit shall not be payable only upon provided to Employee (or Employee's estate, if applicable) until the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with 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 Payment Date. Notwithstanding the Code. To foregoing, the extent Company makes no representations 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 under this Agreement are determined to constitute deferred compensation subject to exempt from, or compliant with, Section 409A and in no event shall any member of the Code but do Company Group be 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. (d) To the extent that the aggregate amount of the installments of the Severance Payment that would otherwise be paid pursuant to the provisions of Section 7(f)(ii)(A) after March 15 of the calendar year following the calendar year in which the Termination Date occurs (the "Applicable March 15") exceeds the maximum exemption amount under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A), then such excess shall be paid to Employee in a lump sum on the Applicable March 15 (or the first business day preceding the Applicable March 15 if the Applicable March 15 is not satisfy an exemption from, or a business day) and the conditions of, installments of the Severance Payment payable after the Applicable March 15 shall be reduced by such Section. excess (beginning with the installment first payable after the Applicable March 15 and continuing with the next succeeding installment until the aggregate reduction equals such excess).
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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)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral per i od, 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 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 6 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 1.409A-l(b)(4) (as a "short-term deferral") and Section l.409A-1(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 It is intended that any amounts payable under this Agreement
shall either be exempt from or comply with Code Section 409A (including the Treasury regulations and other published guidance relating thereto) so as not to subject the Executive to payment of any additional tax, penalty or interest imposed under Code Section 409A. The provisions of this Agreement shall be construed and interpreted to avoid the imputation of any such additional tax, penalty or interest under Code Sectio...n 409A yet preserve (to the nearest extent reasonably possible) the intended benefit payable 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 Executive. (b) If the Executive is a "specified employee" within the meaning of Treasury Regulation Section 409A(a)(2)(B)(i) 1.409A-1(i) as of the Code, then date of the Executive's Separation from Service, the Executive shall not be entitled to the extent any payment or benefit that the Executive becomes entitled pursuant to under Section 1.2(b) of this Agreement until the earlier of (i) the date which is six (6) months after his or otherwise on account her Separation from Service for any reason other than death, or (ii) the date of the Executive's separation from service would be considered deferred compensation otherwise subject death. The provisions of this Section 17(b) shall only apply if, and to the 20 percent additional tax imposed extent, required to avoid the imputation of any tax, penalty or interest pursuant to Code Section 409A(a) 409A. Any amounts otherwise payable to the Executive upon or in the six (6) month period following the Executive's Separation from Service that are not so paid by reason of the Code this Section 17(b) shall be paid (without interest) 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 soon as practicable (and in all events within thirty (30) days) after the date that is the earlier of (A) six (6) months and one day after the Executive's separation Separation from service, or (B) Service (or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the date of the Executive's death. If death). (c) To the extent that 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 benefits or reimbursements pursuant to Section 1.2(b)(ii) or Section 1.2(b)(iii) of this provision, and Agreement are taxable 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 Executive, any reimbursement under this Agreement shall be provided by the Company or incurred by payment due to the Executive during the time periods set forth in this Agreement. All reimbursements pursuant to such provisions shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after to the Executive on or before the last day of the Executive's taxable year following the taxable year in which the related expense was incurred. The benefits and reimbursements pursuant to such provisions are not subject to liquidation or exchange for another benefit and the amount of in-kind such benefits provided or reimbursable expenses incurred and reimbursements that the Executive receives in one taxable year shall not affect the in-kind amount of such benefits to be provided or reimbursements that the expenses eligible for reimbursement Executive receives 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. year.
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