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 It is the intention of the Parties that this Agreement
to be exempt from or comply strictly with the
contrary notwithstanding, if at the time of the Executive's separation from service within the meaning provisions of Section 409A of the Code,
and Treasury Regulations and other Internal Revenue Service guidance promulgated thereunder (the "Section 409A Rules") and any ambiguity herein shall be interpreted so as to be consistent with the intent of this paragraph. In no event whats...oever shall the Company determines be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A or damages for failing to comply with Section 409A. Notwithstanding anything contained herein to the contrary, all payments and benefits which are payable upon a termination of employment hereunder shall be paid or provided only upon those terminations of employment that constitute a "separation from service" from the Company within the meaning of the 409A Rules (determined after applying the presumption set forth in Treas. Reg. Section 1.09A-1(h)(1)). Further, to the extent the Executive is a "specified employee" within specified employee under the meaning 409A Rules at the time of Section 409A(a)(2)(B)(i) a termination of employment and the deferral of the Code, then to the extent commencement of any payment payments or benefit that the Executive becomes entitled to under this Agreement or benefits otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated recognition of income or additional tax under Section 409A, then the application Company will defer the commencement of Section 409A(a)(2)(B)(i) of any payments or benefits hereunder (without any reduction in payments or benefits ultimately paid or provided to the Code, such payment shall not be payable and such benefit shall not be provided Executive) until the date that is the earlier of (A) at least six (6) months and one day after following the Executive's separation from service, or (B) termination of employment with the Company (or the earliest date permitted under Section 409A Rules, e.g., immediately upon the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, death), whereupon the first payment shall include Company will promptly pay the Executive a catch-up payment covering lump-sum amount equal to the cumulative amounts that would have otherwise have been previously paid during to the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement Executive under this Agreement during the period in which such payments or benefits were deferred. Thereafter, the normal schedule for the remaining payments will commence. Notwithstanding anything to the contrary in this Agreement, reimbursement payments shall be provided by the Company or incurred by promptly made to the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, following such submission, but in no event shall any reimbursement be paid after the last day later than December 31st of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount In no event shall the Executive be entitled to any reimbursement payments after December 31st of in-kind the calendar year following the calendar year in which the expense was incurred. Additionally, in the event that following the date hereof, the Company or the Executive reasonably determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company and the Executive shall work together to adopt such amendments to this Agreement or adopt other policies or procedures (including amendments, policies and procedures with retroactive effect), or take any other commercially reasonable actions necessary or appropriate to (x) exempt the compensation and benefits payable under this Agreement from Section 409A Rules and/or preserve the intended tax treatment of the compensation and benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits with respect 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 or (y) comply with the requirements of Section 409A Rules. 11 12. Withholding of Taxes. The Company may take such actions as are reasonably appropriate or consistent with applicable law and 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 Plans in accordance connection 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 compensation paid 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 respect to the Executive withholding of any taxes (including income or employment taxes) or any other person if tax matters, including, but not limited to, requiring the Executive to furnish to the Company any provisions applicable withholding taxes prior to the vesting 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. any Equity Awards.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time The parties acknowledge that, for purposes of Section 409A of the
Executive's separation Internal Revenue Code of 1986, as amended (the "Code"), the Consultant will have undergone a "separation from
service service," within the meaning of Section 409A of the Code,
from the Company
determines upon the Consultant's Employment End Date. The intent of the parties is that the
Executive is a "specified employee" within paym...ents and benefits under this Agreement comply with or be exempt from Section 409A of the meaning Code and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. For purposes of Section 409A(a)(2)(B)(i) 409A of the Code, then Consultant's right to the extent receive any payment or benefit that the Executive becomes entitled installment payments pursuant to under this Agreement or otherwise on account of the Executive's separation from service would shall be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code treated as a result right to receive a series of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable separate and such benefit shall not be distinct payments. All expenses or other reimbursements as 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 herein shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement the Company's policies in effect from time to time, but in any event shall be provided by the Company made on or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after prior to 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 such expenses were incurred in one taxable year shall not affect the in-kind benefits by Consultant. With regard to be provided or the expenses eligible any provision herein that provides for reimbursement in any other taxable year (except for any lifetime of costs and expenses or other aggregate limitation applicable to medical expenses). Such in-kind benefits, except as permitted by Section 409A of the Code: (a) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit; and (b) the extent that amount of expenses eligible for reimbursements or in-kind benefits provided during any payment taxable year shall not affect the expenses eligible for reimbursement or benefit described in-kind benefits to be provided in any other taxable year. Nothing contained in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of shall constitute any representation or warranty by 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 Company regarding 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 Company, shall not have no any 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. Consultant with respect thereto.
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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 her 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 of this provision, and after-tax cost incurred by the balance of the installments shall be payable Executive in independently obtaining any Delayed Benefits in accordance with their original schedule. the Reimbursement Rules (the "Additional Delayed Payments"). 15 (b) All in-kind benefits provided and With respect to any amount of 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 To the extent (i) any payments to which you become entitled under this Agreement, or any agreement or plan referenced herein, 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 (ii) you are deemed at the time of
such termination of employment to be a "specified" employee under Section 409A of the
Executive's Code, then such payment or payments shall no...t be made or commence until the earlier 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 regulations under Section 409A of the Code) with the Company; or (ii) the date of your death following such separation from service within service; provided, however, that such deferral shall only be effected to the meaning 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 period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest). Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement (or otherwise referenced herein) is determined to be subject to (and not exempt from) Section 409A of the Code, the Company determines that amount of any such expenses eligible for reimbursement, or the Executive is a "specified employee" within the meaning provision 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 in-kind benefit, in one calendar year shall not be payable and such benefit shall not be provided until affect 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 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 any other calendar year, in no event shall any reimbursement expenses be paid reimbursed after the last day of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses you incurred such expenses, and in one taxable year no event 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 the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its exemption or compliance with Section 409A of the Code, 409A, the provision shall will be read in such a manner so that all payments hereunder are exempt from Section 409A to the maximum permissible extent, and for any payments where such construction is not tenable, that those payments comply with Section 409A to the maximum permissible extent. To the extent any payment under this Agreement may be classified as a "short-term deferral" within the meaning of the Code. Each Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. 4 Payments pursuant to this Agreement or the Restrictive Covenants Agreement is (or referenced in this Agreement) are intended to constitute a separate payment payments 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 1.409A-2(b)(2) 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 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 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 payments and benefits under 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 the regulations and regulations guidance promulgated thereunder (collectively, "Section 409A") and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. Notwithstanding anything contained herein to the contrary, the Executive shall not be considered to have terminated employment with the Company for purposes of any payments under this Agreement which are subject to Section 409A until the Executive has incurred a "separation from service" within the meaning of Section 409A. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to preserve the payments avoid an accelerated or additional tax under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided hereunder without pursuant to this Agreement during the six-month period immediately following the Executive's separation from service shall instead be paid on the first business day after the date that is six months following the Executive's separation from service (or, if earlier, the Executive's date of death). To the extent required to avoid an accelerated or additional cost tax under Section 409A, amounts reimbursable to either party. (e) the Executive shall be paid to the Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in kind benefits provided to the Executive) during one year may not affect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or warranty and shall have no liability to all of the Executive or any other person if any provisions of payments described in this Agreement are determined to constitute deferred compensation subject to will be exempt from or comply with Section 409A of the Code but do not satisfy an exemption from, or the conditions of, and makes no undertaking to preclude Section 409A from applying to any such Section. payment.
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Section 409a. (a)
Anything in this Agreement If any payment, compensation or other benefit provided to the
contrary notwithstanding, if at the time of the Executive's separation from service Employee in connection with his employment termination is determined, in whole or in part, to constitute "nonqualified deferred compensation" within the meaning of Section 409A of the
Code, Internal Revenue Code of 1986, as amended ("Section 409A") and the Employee is a specified employee as defined in Section 409A(a)(2)(...B)(i), then no portion of such "nonqualified deferred compensation" shall be paid before the earlier of (i) the day that is 13 six (6) months plus one (1) day after the date of termination or (ii) five (5) days following the Employee's death (the "New Payment Date"). The aggregate of any payments that otherwise would have been paid to the Employee during the period between the date of termination and the New Payment Date shall be paid to the Employee in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. Notwithstanding the foregoing, to the extent that the foregoing applies to the provision of any ongoing welfare benefits to the Employee that would not be required to be delayed if the premiums therefor were paid by the Employee, the Employee shall pay the full cost of premiums for such welfare benefits during the six-month period and the Company determines shall pay the Employee an amount equal to the amount of such premiums paid by the Employee during such six-month period promptly after its conclusion. (b) The Parties hereto acknowledge and agree that the Executive interpretation of Section 409A and its application to the terms of this Agreement is a "specified employee" uncertain and may be subject to change as additional guidance and interpretations become available. Anything to the contrary herein notwithstanding, all benefits or payments provided by the Company to the Employee that would be deemed to constitute "nonqualified deferred compensation" within the meaning of Section 409A(a)(2)(B)(i) 409A are intended to comply with Section 409A. If, however, any such benefit or payment is deemed to not comply with Section 409A, the Company and the Employee agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereof) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A will be achieved. Notwithstanding the foregoing, the Company makes no guarantee of any federal, state or local tax consequences with respect to the interpretation of Section 409A and its application to the terms of this Agreement, and the Company shall have no liability for any adverse tax consequences 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 Employee, as a result of the application any violation of Section 409A(a)(2)(B)(i) of 409A. (c) Notwithstanding anything to 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 contrary contained in this Agreement, all reimbursements 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 costs 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 later than the last day end 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 Employee incurs such expense. With regard to be provided or the expenses eligible any provision herein that provides for reimbursement in any other taxable year (except for any lifetime of costs and expenses or other aggregate limitation applicable to medical expenses). Such in-kind benefits, except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit and (ii) the extent amount of expenses eligible for reimbursements 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, however, that the foregoing 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 of 1986, as amended, solely because such expenses are subject to a limit related to the extent that such payment period the arrangement is in effect. 14 (d) If under this Agreement, an amount is paid in two or benefit is payable upon the Executive's more installments, for purposes of Section 409A, each installment shall be treated as a separate payment. (e) A termination of employment, then such payments or benefits employment shall not be payable only upon the Executive's "separation from service." The determination deemed to have occurred for purposes 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 providing for the payment 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 any amounts 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 upon or following a termination of employment unless such termination is also a "separation from service" as defined in Treas. Reg. Section 1.409A-1(h), including the Code but do not satisfy an exemption from, default presumptions, and for purposes of any such provision of this Agreement, references to a "resignation," "termination," "terminate," "termination of employment" or the conditions of, such Section. like terms shall mean separation from service.
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Section 409a. (a)
Anything in this Agreement If any payment, compensation or other benefit provided to the
contrary notwithstanding, if at the time of the Executive's separation from service Employee in connection with his employment termination is determined, in whole or in part, to constitute "nonqualified deferred compensation" within the meaning of Section 409A of the
Code, Internal Revenue Code of 1986, as amended ("Section 409A") and the Employee is a specified employee as defined in Section 409A(a)(2)(...B)(i), then no portion of such "nonqualified deferred compensation" shall be paid before the earlier of (i) the day that is six (6) months plus one (1) day after the date of termination or (ii) five (5) days following the Employee's death (the "New Payment Date"). The aggregate of any payments that otherwise would have been paid to the Employee during the period between the date of termination and the New Payment Date shall be paid to the Employee in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. Notwithstanding the foregoing, to the extent that the foregoing applies to the provision of any ongoing welfare benefits to the Employee that would not be required to be delayed if the premiums therefor were paid by the Employee, the Employee shall pay the full cost of premiums for such welfare benefits during the six-month period and the Company determines shall pay the Employee an amount equal to the amount of such premiums paid by the Employee during such six-month period promptly after its conclusion. (b) The Parties hereto acknowledge and agree that the Executive interpretation of Section 409A and its application to the terms of this Agreement is a "specified employee" uncertain and may be subject to change as additional guidance and interpretations become available. Anything to the contrary herein notwithstanding, all benefits or payments provided by the Company to the Employee that would be deemed to constitute "nonqualified deferred compensation" within the meaning of Section 409A(a)(2)(B)(i) 409A are intended to comply with Section 409A. If, 13 however, any such benefit or payment is deemed to not comply with Section 409A, the Company and the Employee agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereof) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A will be achieved. Notwithstanding the foregoing, the Company makes no guarantee of any federal, state or local tax consequences with respect to the interpretation of Section 409A and its application to the terms of this Agreement, and the Company shall have no liability for any adverse tax consequences 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 Employee, as a result of the application any violation of Section 409A(a)(2)(B)(i) of 409A. (c) Notwithstanding anything to 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 contrary contained in this Agreement, all reimbursements 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 costs 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 later than the last day end 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 Employee incurs such expense. With regard to be provided or the expenses eligible any provision herein that provides for reimbursement in any other taxable year (except for any lifetime of costs and expenses or other aggregate limitation applicable to medical expenses). Such in-kind benefits, except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit and (ii) the extent amount of expenses eligible for reimbursements 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, however, that the foregoing 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 of 1986, as amended, solely because such expenses are subject to a limit related to the extent that such payment period the arrangement is in effect. (d) If under this Agreement, an amount is paid in two or benefit is payable upon the Executive's more installments, for purposes of Section 409A, each installment shall be treated as a separate payment. (e) A termination of employment, then such payments or benefits employment shall not be payable only upon the Executive's "separation from service." The determination deemed to have occurred for purposes 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 providing for the payment 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 any amounts 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 upon or following a termination of employment unless such termination is also a "separation from service" as defined in Treas. Reg. Section 1.409A-1(h), including the Code but do not satisfy an exemption from, default presumptions, and for purposes of any such provision of this Agreement, references to a "resignation," "termination," "terminate," "termination of employment" or the conditions of, such Section. like terms shall mean separation from service.
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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 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 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.
(a) Anything 21.1 This Agreement is intended to comply with, or be exempt from, Section 409A and will be interpreted, administered and operated in a manner consistent with that intent. 21.2 For purposes of Section 409A, each of the payments that may be made under this Agreement are designated as separate payments. For purposes of this Agreement, with respect to payments of any amounts that are considered to be "deferred compensation" subject to Section 409A, references to "termination of employm...ent" (and substantially similar phrases) shall be interpreted and applied in a manner that is consistent with the requirements of Section 409A. 21.3 Notwithstanding anything in this Agreement to the contrary notwithstanding, if at contrary, in the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines event that the Executive is deemed to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then no payments that are "deferred compensation" subject to Section 409A that are made by reason of Executive's "separation from service" within the meaning of Section 409A shall be made to Executive prior to the extent date that is six (6) months after the date of Executive's "separation from service" or, if earlier, Executive's date of death. Immediately following such delay period, all such delayed payments will be paid in a single lump sum. Except as permitted under Section 409A, any deferred compensation that is subject to Section 409A and is payable to or for Executive's benefit under any Company sponsored plan, program, agreement or arrangement may not be reduced by, or offset against, any amount owing by Executive to the Company or any affiliate.21.4 Notwithstanding anything to the contrary in this Agreement, any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation that is exempt from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed Section 409A 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 Treasury Regulation ยง 1.409A-1(b)(9)(v)(A) or (C) (relating to certain reimbursements 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 benefits) shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after or provided to Executive only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the taxable second calendar year following the taxable calendar year in which Executive's "separation from service" occurs; and provided further that such expenses are reimbursed no later than the last day of the third calendar year following the calendar year in which Executive's "separation from service" occurs. Any payment or benefit paid to Executive hereunder in respect of reimbursement of taxes incurred by Executive shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are required to be paid. To the extent any indemnification payment, expense was incurred. The reimbursement, or the provision of any in-kind benefit is determined to be subject to Section 409A (and not exempt pursuant to the prior sentence or otherwise), the amount of any such indemnification payment or expenses eligible for reimbursement, or the provision of any in-kind benefits provided or reimbursable expenses incurred benefit, in one taxable calendar year shall not affect the indemnification payment or provision of in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable calendar year (except for any lifetime life-time or other aggregate limitation applicable to medical expenses). Such expenses), and in no event shall any indemnification payment or expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such indemnification payment or expenses, and in no event shall any right to indemnification payment or reimbursement or the provision of any in-kind benefits is not benefit be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a.
(a) Anything in Any payments under this Agreement
subject to Section 409A of the Code that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as a termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A of the Code. Notwithstanding ...anything to the contrary notwithstanding, if at in this Agreement, no compensation or benefits shall be paid to the time of Employee during the Executive's separation six (6)-month period following the Employee's "separation from service within service" from the Company (within the meaning of Section 409A of the Code, a "Separation from Service") if the Company determines that paying such amounts at the Executive is time or times indicated in this Agreement would be a "specified employee" within the meaning of prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, then to Code. If the extent payment of any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code such amounts is delayed 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 previous sentence, then 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 seventh month following the taxable year date of Separation from Service (or such earlier date upon which such amount can be paid under Section 409A without resulting in which a prohibited distribution, including as a result of the expense was incurred. The Employee's death), the Company shall pay the Employee a lump-sum amount equal to the cumulative amount that would have otherwise been payable to the Employee during such period. Any right to a series of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits installment payments pursuant to this Agreement is 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 treated as a right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) a series of separate payments. To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" permitted under Section 409A of the Code, and to the extent that such any separate 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 under this Agreement or the Restrictive Covenants Agreement is intended otherwise shall not be deemed "nonqualified deferred compensation" subject 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 extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other person if any provisions applicable exception or provision of this Agreement are determined to constitute Section 409A. All payments of nonqualified deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or -13- to be made upon a termination of employment under this Agreement may only be made upon the conditions of, such Section. Employee's Separation from Service.
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