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 this This Agreement
to and the
contrary notwithstanding, if at benefits provided hereunder are intended be exempt from, or compliant with, the
time of the Executive's separation from service within the meaning requirements of Section 409A of the
Code, the Company determines that the Executive is a "specified employee" within the meaning Internal Revenue Code of
Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to u...nder 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, 1986 and the balance of the installments Treasury regulations and other guidance issued thereunder (collectively, "Section 409A") and shall be payable construed and administered in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement such intent. Each installment payment under this Agreement shall be provided by deemed and treated as a separate payment for purposes of Section 409A. Notwithstanding the foregoing, the Company or incurred by makes no representations that the Executive during benefits provided under this Agreement are exempt from the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but requirements of Section 409A and in no event shall the Company or any of its Affiliates be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive on account of non-compliance with Section 409A. 9 (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 paid after made by the Company no 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. (c) To benefit, and (iii) 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 the foregoing clause 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 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 105(b) of the Code and all solely because such expenses are subject to a limit 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 period in which the Code but do not satisfy an exemption from, or the conditions of, such Section. arrangement is in effect.
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Section 409a. (a)
Anything in this Agreement to the contrary notwithstanding, if at the time The intent of the
Executive's separation from service within the meaning of Section 409A of the Code, the Company determines parties is 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 payments and benefits under this Agreement
comply with or
otherwise on account of the Executive's s...eparation be exempt from service would be considered deferred compensation otherwise subject Section 409A and, accordingly, 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 maximum extent permitted this Agreement shall be provided by interpreted to be in compliance therewith or exempt therefrom. Neither the Company nor any of its affiliates shall be liable for any additional tax, interest or incurred by penalty that may be imposed on the Executive during the time periods set forth in by Section 409A or damages for failing to comply with Section 409A. (b) All expenses or other reimbursements under this Agreement. All reimbursements Agreement that would constitute nonqualified deferred compensation subject to Section 409A, (i) shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the expense was incurred. The amount of in-kind benefits provided Executive, (ii) no such reimbursement or reimbursable expenses incurred eligible for reimbursement in one any taxable year shall not in any way affect the in-kind benefits Executive's right to be provided or the reimbursement of any other expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year, 17 and (iii) the Executive's right to reimbursement or in-kind benefits is shall not be subject to liquidation or in exchange for another any other benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under For purposes of Section 409A of the Code, and to the extent that such payment or benefit is payable upon 409A, 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 right to receive 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 installment payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended shall be treated as a right to constitute receive a series of separate and distinct payments. (d) Whenever a payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 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. Company. (e) The Company makes no representation or warranty and shall have no liability to the Executive or Notwithstanding any other person if any provisions provision of this Agreement are determined to constitute the contrary, in no event shall any payment under this Agreement that constitutes nonqualified deferred compensation subject to Section 409A of 409A, be subject to offset, counterclaim or recoupment by any other amount payable to the Code but do not satisfy an exemption from, or the conditions of, such Section. Executive unless otherwise permitted by Section 409A.
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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. 14 (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. 15 (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 Notwithstanding anything herein to the
contrary notwithstanding, contrary, (i) if at the time of
your termination of employment with the
Executive's separation Company, you are a "specified employee" as defined in Section 409A of the Code and the applicable guidance and regulations thereunder (collectively, "Section 409A"), and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is n...ecessary in order to prevent any accelerated or additional tax under Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) until the first business day to occur following the date that is six (6) months following your termination of employment with the Company (or the earliest date as is permitted under Section 409A); and (ii) if any other payments of money or other benefits due to you hereunder could cause the application of an accelerated or additional tax under Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company's Board of the Directors, that does not cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 15 in order to prevent any accelerated tax or additional tax under Section 409A, then such payments shall be paid at the time specified under this Section 15 without any interest thereon. The Company shall consult with you in good faith regarding the implementation of this Section 15; provided, that neither the Company nor any of its employees or representatives shall have any liability to you with respect thereto. Notwithstanding anything to the contrary herein, to the extent required by Section 409A, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service service" within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a "resignation," "termination," "termination of employment" or like terms shall mean separation from service. For purposes of Section 409A, each payment made under this Agreement shall be designated as a "separate payment" within the meaning of the Code, Section 409A. Notwithstanding anything to the Company determines that contrary herein, except to the Executive is extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a "specified employee" "deferral of compensation" within the meaning of Section 409A(a)(2)(B)(i) 409A, (A) the amount 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 or in-kind benefits provided to you during any calendar year will not affect the amount of expenses eligible for reimbursement or in- kind benefits provided to you in any other calendar year; (B) the reimbursements for expenses for which you are entitled to be reimbursed shall be provided by the Company made on or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after before the last day of the taxable calendar year following the taxable calendar year in which the applicable expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect is incurred; and (C) 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 payment or reimbursement or in-kind benefits is hereunder may not subject to liquidation be liquidated or exchange exchanged for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. benefit.
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Section 409a.
(a) Anything in (a)It is the intention of the Company and Executive that this Agreement
not result in unfavorable tax consequences to Executive under Section 409A of the Code ("Section 409A"). To the extent applicable, it is intended that the Agreement comply with the provisions of Section 409A, but the Company does not warrant or guarantee that the Agreement is either 9 excepted from the requirements of Section 409A or that the Agreement complies with Section 409A. The Agreement will be adminis...tered and interpreted in a manner consistent with this intent, and any provision that would cause the Agreement to fail to satisfy Section 409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the contrary notwithstanding, extent permitted by Section 409A). The Company and Executive agree to work together in good faith in an effort to comply with Section 409A including, if at necessary, amending this Agreement based on further guidance issued by the Internal Revenue Service from time to time, provided that the Company shall not be required to assume any increased economic burden. Executive remains solely responsible for any adverse tax consequences imposed upon her by Section 409A. (b)Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, Executive shall not be considered to have terminated employment with the Company for purposes of the Executive's separation Agreement and no payments shall be due to her under the Agreement which are payable upon her termination of employment until she would be considered to have incurred a "separation from service service" from the Company within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to 409A. (c)To the extent any payment or benefit that the Executive becomes entitled required in order to avoid accelerated taxation and/or tax penalties under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise Section 409A, amounts 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 409A that would otherwise be payable and such benefit shall not benefits that would otherwise be provided until pursuant to the Agreement during the six-month period immediately following Executive's termination of employment shall instead be paid within thirty (30) days following the first business day after the date that is the earlier of (A) six months and one day after the Executive's separation from service, following her termination of employment (or upon her death, if earlier). If it is determined that all 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 portion of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under payments due pursuant to 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 are 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 if the extent that such payment or benefit is payable upon General Release consideration period and revocation period spans two calendar years, 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 provided pursuant to this Agreement that are subject to Section 409A shall not begin until the second calendar year. Executive may not elect the taxable year of the distribution. In addition, for purposes of this Agreement, each amount to be paid or benefit to be provided to the Restrictive Covenants Executive pursuant to this Agreement is intended to constitute shall be construed as a separate identified 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 It is intended that any amounts payable under this Agreement
to the contrary notwithstanding, if at the time of the Executive's separation shall either be exempt from
service within the meaning of or comply with Section 409A of the
Code, Code (including the
Company determines that Treasury regulations and other published guidance relating thereto) ("Code Section 409A") so as not to subject the Executive to payment of any additional tax, penalty or interest imposed under Code Sect...ion 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 Section 409A yet preserve (to the nearest extent reasonably possible) the intended benefit payable to the Executive. Any installment payments provided for in this Agreement shall be treated as a series of separate payments for purposes of Code Section 409A. 23 (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 pursuant to Section 5.3(b) or (c) until the Executive becomes entitled to under this Agreement earlier of (i) the date which is six (6) months after his Separation from Service for any reason other than death, or otherwise on account (ii) the date of the Executive's separation from service would be considered deferred compensation otherwise subject death. The provisions of this Section 21(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 21(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 benefits pursuant to Section 5.3(b)(ii) or reimbursements pursuant to Section 4.2 are taxable to the Executive, any reimbursement payment due to the Executive pursuant to 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 provision 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 year. [The remainder 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. page has intentionally been left blank.]
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Section 409a. (a)
Anything in this Agreement to the contrary notwithstanding, if at the time The intent of the
Executive's separation from service within the meaning of Section 409A of the Code, the Company determines parties is 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 payments and benefits under this Agreement
comply with or
otherwise on account of the Executive's s...eparation be exempt from service would be considered deferred compensation otherwise subject Section 409A and, accordingly, 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 maximum extent permitted this Agreement shall be provided by interpreted to be in compliance therewith or exempt therefrom. Neither the Company nor any of its affiliates shall be liable for any additional tax, interest or incurred by penalty that may be imposed on the Executive during the time periods set forth in by Section 409A or damages for failing to comply with Section 409A. (b) All expenses or other reimbursements under this Agreement. All reimbursements Agreement that would constitute nonqualified deferred compensation subject to Section 409A, (i) shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the expense was incurred. The amount of in-kind benefits provided Executive, (ii) no such reimbursement or reimbursable expenses incurred eligible for reimbursement in one any taxable year shall not in any way affect the in-kind benefits Executive's right to be provided or the reimbursement of any other expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such year, and (iii) the Executive's right to reimbursement or in-kind benefits is shall not be subject to liquidation or in exchange for another any other benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under For purposes of Section 409A of the Code, and to the extent that such payment or benefit is payable upon 409A, 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 right to receive 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 installment payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended shall be treated as a right to constitute receive a series of separate and distinct payments. (d) Whenever a payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 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. Company. 17 (e) The Company makes no representation or warranty and shall have no liability to the Executive or Notwithstanding any other person if any provisions provision of this Agreement are determined to constitute the contrary, in no event shall any payment under this Agreement that constitutes nonqualified deferred compensation subject to Section 409A of 409A, be subject to offset, counterclaim or recoupment by any other amount payable to the Code but do not satisfy an exemption from, or the conditions of, such Section. Executive unless otherwise permitted by Section 409A.
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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 her receipt of such payments. 15 (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 her 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 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 benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. benefit.
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Section 409a. (a)
Anything in It is intended that any amounts payable under this Agreement
to the contrary notwithstanding, if at the time of the Executive's separation shall either be exempt from
service within the meaning of or comply with Section 409A of the
Code, Code (including the
Company determines that Treasury regulations and other published guidance relating thereto) ("Code Section 409A") so as not to subject the Executive to payment of any additional tax, penalty or interest imposed under Code Sect...ion 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 Section 409A yet preserve (to the nearest extent reasonably possible) the intended benefit payable to the Executive. Any installment payments provided for in this Agreement shall be treated as a series of separate payments for purposes of Code Section 409A. (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 pursuant to Section 5.3(b) or (c) until the Executive becomes entitled to under this Agreement earlier of (i) the date which is six (6) months after his Separation from Service for any reason other than death, or otherwise on account (ii) the date of the Executive's separation from service would be considered deferred compensation otherwise subject death. The provisions of this Section 21(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 21(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). 23 (c) To the extent that any benefits pursuant to Section 5.3(b)(ii) or reimbursements pursuant to Section 4.2 are taxable to the Executive, any reimbursement payment due to the Executive pursuant to 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 provision 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 year. [The remainder 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. page has intentionally been left blank.]
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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 7 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. Payments pursuant to this Agreement or the Restrictive Covenants Agreement is (or referenced in this Agreement), and each installment thereof, 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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