Section 409a Clause Example with 1,590 Variations from Business Contracts

This page contains Section 409a clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Section 409a. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. View More Arrow
Found in Fusion Pharmaceuticals Inc. contract

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

Section 409a. (a) Anything in this Agreement Notwithstanding anything to the contrary notwithstanding, in this Agreement, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of (as defined and applied in Section 409A(a)(2)(B)(i) 409A) as of the Code, then Date of Termination, 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 constitutes deferred compensation otherwise subject (after taking into account any applicable exemptions under Section 409A) and to the 20 percent additional tax imposed pursuant to extent required by Section 409A(a) 409A, the Executive shall instead receive such payments (including settlement 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 equity awards) on the earlier of (A) six months and one (a) the first day after following the six-month anniversary of the Date of Termination, or (b) the Executive's separation from service, or (B) date of death, to the Executive's death. If any extent such delayed cash payment delay is otherwise payable on an installment basis, the first payment shall include required in order to avoid a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application prohibited distribution under Section 409A. For purposes 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 Section 409A, each "payment" (as defined by Section 409A) made under this Agreement shall be provided by considered a "separate payment." Further, to the Company or incurred by extent the Executive during payments contemplated under Section 2(b) constitute deferred compensation and the time periods set forth 65-day payment period described in this Agreement. All reimbursements Section 2(b) spans two calendar years, then the payments contemplated thereunder shall be paid as soon as administratively practicable, but in the second calendar year. In addition, for purposes of Section 409A, payments shall be deemed exempt from Section 409A to the full extent possible under the "short-term deferral" exemption of Treasury Regulation § 1.409A-1(b)(4) and (with respect to amounts paid no event shall any reimbursement be paid after later than the last day of the taxable second calendar year following the taxable calendar year containing the Date of Termination) the "two-years/two-times" separation pay exemption of Treasury Regulation § 1.409A-1(b)(9)(iii), which are hereby incorporated by reference. Notwithstanding anything to the contrary in which this Agreement, the expense was incurred. The amount of in-kind benefits provided Company may amend the Agreement, 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 take any other taxable year (except for any lifetime actions, as deemed necessary or other aggregate limitation applicable appropriate 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 (a) exempt any payment or benefit described under the Agreement from Section 409A and/or preserve the intended tax treatment of the payments or benefits under the Agreement, or (b) comply with the requirements of Section 409A and thereby avoid the application of any penalty taxes under such Section, but the Company shall not be under any obligation to make any such amendment. Nothing in this Agreement constitutes "non-qualified deferred compensation" under shall provide a basis for any person to take action against the Company based on matters covered by Section 409A 409A, including the tax treatment of the Code, and to the extent that such any payment or benefit is payable upon under the Executive's termination of employment, then such payments Agreement, and the Company shall not under any circumstances have any liability to the Executive, his estate or benefits shall be payable only upon any other party for any taxes, penalties or interest due on any payment or benefit under this Agreement, including taxes, penalties or interest imposed under Section 409A.8. Compensation Recoupment. Pursuant to the Executive's "separation from service." The determination of whether Dodd-Frank Wall Street Reform 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 Consumer Protection Act (the "Act"), any payment or benefit under this Agreement will shall not be administered in accordance with Section 409A deemed fully earned or vested, even if paid or distributed to the Executive, if such payment, benefit, or any portion thereof is deemed incentive compensation and subject to recovery, or "clawback" by the Company pursuant to the provisions of the Code. To Act and any rules or regulations promulgated thereunder or by any stock exchange on which the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of Company's securities are listed (the "Rules"). In addition, 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 Executive hereby acknowledges that this Agreement may be amended, amended as reasonably requested necessary and/or shall be subject to any recoupment policies adopted by either party, and as may be necessary the Company to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve requirements and/or limitations under the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation Act or warranty and shall have no liability to the Executive Rules, or any other person federal or stock exchange requirements, including by expressly permitting (or, if applicable, requiring) the Company to revoke, recover and/or clawback any payment or benefit under this Agreement.9. Successors' Binding Obligation. (a) This Agreement shall not be terminated by any merger, consolidation or corporate reorganization of the Company (a "Company Change") or transfer of assets. In the event of any Company Change or transfer of assets, the provisions of this Agreement are determined shall be binding upon the surviving or resulting corporation or any person or entity to constitute deferred compensation subject to Section 409A which the assets of the Code but do not satisfy an exemption from, Company are transferred. (b) This Agreement shall inure to the benefit of and be enforceable by the Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the conditions of, Executive dies while any amounts would be payable to the Executive hereunder had the Executive continued to live, all such Section. amounts, unless otherwise provided herein, shall be paid in accordance with Section 2 of this Agreement to such person or persons appointed in writing by the Executive to receive such amounts or, if no person is so appointed, to the Executive's estate. View More Arrow
Found in Trimble Inc contract
Section 409a. (a) Anything in this Agreement Notwithstanding anything to the contrary notwithstanding, in this Agreement, no severance pay or benefits to be paid or provided to Executive, if at any, pursuant to this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the time of the Executive's separation "Deferred Compensation Separation Benefits") will be paid or otherwise provided until Executiv...e has a "separation from service service" within the meaning of Section 409A of 409A. (b) Notwithstanding anything to the Code, the Company determines that the contrary in this Agreement, if Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A at the time of Executive's termination (other than due to death), then the Code, then to Deferred Compensation Separation Benefits that are payable within 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) first six (6) months and one day after the following Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise will become payable on an installment basis, the first payment shall include a catch-up payment covering amounts payroll date that would otherwise have been paid during occurs on or after the six-month period but for date six (6) months and one (1) day following the application date of this provision, and the balance of the installments shall Executive's separation from service. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Executive dies following Executive's separation from service, but prior to the six (6) month anniversary of the separation from service, then any payments delayed in accordance with this Agreement shall paragraph will be provided by the Company or incurred by the Executive during the time periods set forth payable in this Agreement. All reimbursements shall be paid a lump sum as soon as administratively practicable, but in no event shall any reimbursement be paid practicable after the last day date 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 Executive's death and all 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 Deferred Compensation Separation Benefits will 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 payment schedule applicable 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 or benefit. Each payment pursuant to and benefit payable under this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment payments for purposes of Section l.409A-2(b)(2) of the Treasury Regulations. 9 (c) Any amount paid under this Agreement that satisfies the requirements of the "short-term deferral" rule set forth in Section l.409A-l(b)(4) of the Treasury Regulations will not constitute Deferred Compensation Separation Benefits for purposes of clause (a) above. (d) Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A- l (b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit will not constitute Deferred Compensation Separation Benefits for purposes of clause (a) above. For purposes of this Agreement, "Section 409A Limit" will mean the lesser of two (2) times: (i) Executive's annualized compensation based upon the annual rate of pay paid to Executive during the Executive's taxable year preceding Executive's taxable year of Executive's termination of employment as determined under Treasury Regulation Section 1.409A-2(b)(2). The parties agree l .409A-l(b)(9)(iii)(A)(l) and any Internal Revenue Service guidance issued with respect thereto; or (ii) the maximum amount that this Agreement may be amended, as reasonably requested by either party, and as may be necessary taken into account under a qualified plan pursuant to fully comply with Section 409A 40l(a)(17) of the Code and all related rules and regulations for the year in order which Executive's employment is terminated. (e) The foregoing provisions are intended to preserve comply with or be exempt from the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder without will be subject to the additional cost tax imposed under Section 409A, and any ambiguities herein will be interpreted to either party. (e) so comply. The Company makes no representation or warranty and shall have no liability Executive agree to the Executive or any other person if any provisions of work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are determined necessary, appropriate or desirable to constitute deferred compensation subject avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. 409A. View More Arrow
Found in PROTEON THERAPEUTICS INC contract
Section 409a. (a) Anything in It is the intention of the Parties that this Agreement to be exempt from or comply strictly with the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning provisions of Section 409A of the Code, and Treasury Regulations and other Internal Revenue Service guidance promulgated thereunder (the "Section 409A Rules") and any ambiguity herein shall be interpreted so as to be consistent with the intent of this paragraph. In no event whats...oever shall the Company determines be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A or damages for failing to comply with Section 409A. Notwithstanding anything contained herein to the contrary, all payments and benefits which are payable upon a termination of employment hereunder shall be paid or provided only upon those terminations of employment that constitute a "separation from service" from the Company within the meaning of the 409A Rules (determined after applying the presumption set forth in Treas. Reg. Section 1.09A-1(h)(1)). Further, to the extent the Executive is a "specified employee" within specified employee under the meaning 409A Rules at the time of Section 409A(a)(2)(B)(i) a termination of employment and the deferral of the Code, then to the extent commencement of any payment payments or benefit that the Executive becomes entitled to under this Agreement or benefits otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated recognition of income or additional tax under Section 409A, then the application Company will defer the commencement of Section 409A(a)(2)(B)(i) of any payments or benefits hereunder (without any reduction in payments or benefits ultimately paid or provided to the Code, such payment shall not be payable and such benefit shall not be provided Executive) until the date that is the earlier of (A) at least six (6) months and one day after following the Executive's separation from service, or (B) termination of employment with 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 benefits provided or reimbursable expenses incurred the calendar year following the calendar year in one taxable year shall not affect which the in-kind benefits to be provided expense was incurred. 11 Additionally, in the event that following the date hereof, the Company or the expenses eligible for reimbursement in Executive reasonably determines that any other taxable year (except for any lifetime compensation or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not payable under this Agreement may be subject to liquidation or exchange for another benefit. (c) To Section 09A, the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of Company and the Code, and Executive shall work together to the extent that adopt such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant amendments to this Agreement or adopt other policies or procedures (including amendments, policies and procedures with retroactive effect), or take any other commercially reasonable actions necessary or appropriate to (x) exempt the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that compensation and benefits payable under this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with from Section 409A Rules and/or preserve the intended tax treatment of the Code and all related rules and regulations in order to preserve the payments compensation and benefits provided hereunder without additional cost with respect to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to or (y) comply with the requirements of Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Rules. View More Arrow
Found in EMPIRE RESORTS INC contract
Section 409a. (a) Anything in The parties intend for the compensation provided under this Agreement to comply with, or be exempt from, the contrary notwithstanding, if at provisions of Section 409A of the time Internal Revenue Code of 1986, as amended (the "Code") (together with the regulations thereunder, "Section 409A"). Notwithstanding the foregoing, in no event shall the Company, Holdco or any of their respective affiliates have any liability to the Executive or to any other person claiming rights under t...his Agreement relating to the failure or alleged failure of any payment or benefit under this Agreement to comply with, or be exempt from, the provisions of Section 409A. (a) Definitions. For purposes of this Agreement, all references to "termination of employment" and similar or correlative phrases shall be construed to require a "separation from service" (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), and the term "specified employee" means an individual determined by Holdco to be a specified employee under Treasury regulation Section 1.409A-1(i). (b) Certain Delayed Payments. If any payment or benefit hereunder constituting "nonqualified deferred compensation" subject to Section 409A would be subject to subsection (a)(2)(B)(i) of Section 409A (relating to payments made to "specified employees" of publicly-traded companies upon separation from service), any such payment or benefit to which the Executive would otherwise be entitled during the six (6) month period following the Executive's separation from service within will instead be provided or paid without interest on the meaning first business day following the expiration of Section 409A of such six (6) month period, or if earlier, 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 date 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 death. (c) Separate Payments. Each 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 made under this Agreement shall be provided by treated as a separate payment. (d) Reimbursements. Notwithstanding anything to the Company contrary in this Agreement, any reimbursement that constitutes or could constitute nonqualified deferred compensation subject to Section 409A will be subject to the following additional requirements: (i) the expenses eligible for reimbursement will have been incurred by the Executive during the time periods set forth in term of this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after -8- Agreement, (ii) 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 eligible for reimbursement during any calendar year shall will not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year; (iii) reimbursement will be made not later than December 31 of the calendar year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such following the calendar year in which the expense was incurred; and (iv) the right to reimbursement or in-kind benefits is will not 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. benefit. View More Arrow
Found in Party City Holdco Inc. contract
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. 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. View More Arrow
Found in 4 Contracts from Stoke Therapeutics, Inc.
Section 409a. (a) Anything in 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 excepted from the requirements of Section 409A or that the Agreement complies with Section 409A. The Agreement will be administered... 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 him 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 him under the Agreement which are payable upon his termination of employment until he 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 required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that the Executive becomes entitled to under this Agreement or would 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 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 his termination of employment (or upon his 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. View More Arrow
Found in Insight Enterprises, Inc. contract
Section 409a. (a) Anything in Notwithstanding any provisions of this Agreement to the contrary notwithstanding, contrary, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within (within the meaning of Section 409A(a)(2)(B)(i) 409A and determined pursuant to procedures adopted by the Company) at the time of his separation from service (within the meaning of Section 409A) and if any porti...on of the Code, then payments or benefits to the extent any payment or benefit that be received by the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's upon separation from service would be considered deferred compensation under Section 409A, amounts that would otherwise subject to the 20 percent additional tax imposed be payable pursuant to Section 409A(a) of this Agreement during the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after six-month period immediately following the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts service (the "Delayed Payments") and benefits that would otherwise have been paid be provided pursuant to this Agreement (the "Delayed Benefits") during the six-month period but immediately following the Executive's separation from service (such period, the "Delay Period") shall instead be paid or made available on the earlier of (i) the first business day of the seventh month following the date of the Executive's separation from service or (ii) Executive's death (the applicable date, the "Permissible Payment Date"). The Company shall also reimburse the Executive for the application 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"). (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. View More Arrow
Found in BlueLinx Holdings Inc. contract
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 (20%) percent 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. 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. View More Arrow
Found in GRAYBUG VISION, INC. contract
Section 409a. (a) Anything (a)The parties hereby acknowledge and agree that all benefits or payments provided by the Company to Executive pursuant to this Agreement are intended either to be exempt from Section 409A of the Code, or to be in compliance with Section 409A, and the Agreement shall be interpreted to the greatest extent possible to be so exempt or in compliance and to incorporate the terms and conditions required by Section 409A. If there is an ambiguity in the language of the Agreement, or if Sect...ion 409A guidance indicates that a change to the Agreement is required or desirable to achieve exemption or compliance with Section 409A, notwithstanding any provision of this Agreement to the contrary notwithstanding, if at contrary, the time Company shall make a good faith effort (without any obligation to do so or to indemnify Executive for failure to do so) to (i) adopt such amendments to this Agreement and or adopt such other policies and procedures, including amendments, policies and procedures with retroactive effect, that the Company determines to be necessary or appropriate to preserve the intended tax treatment of the Executive's separation benefits provided by this Agreement, to preserve the economic benefits of this Agreement and to avoid less favorable accounting or tax consequences for the Company and/or (ii) take such other actions as the Company determines to be necessary or appropriate to exempt the amounts payable hereunder from service Section 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. No provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section 409A from the Executive or any other individual to the Company or any of its affiliates, employees or agents. (b)If any severance or other payments that are required by the Agreement are to be paid in a series of installment payments, each individual payment in the series shall be considered a separate payment for purposes of Section 409A. To the extent that any reimbursement of expenses or in­kind benefits constitutes "deferred compensation" under Section 409A, such reimbursement or benefit shall be provided no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in­kind benefits provided in one year shall not affect the amount of in­kind benefits provided in any other year. (c)If any severance compensation or other benefit provided to Executive pursuant to this Agreement that constitutes "nonqualified deferred compensation" within the meaning of Section 409A is considered to be paid on account of "separation from service" within the Code, the Company determines that the meaning of Section 409A, and Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409A, no payments of the Code, then to the extent any payment of such severance 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 other benefit shall not be provided until the date that is the earlier of (A) made for six (6) months and plus one (1) day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise Separation Date (the "New Payment Date"). Amounts 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 deemed 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 "nonqualified deferral of 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 to the extent provided in the exceptions in Treasury Regulation § § 1.409A­1(b)(4) ("short­term deferrals") and (b)(9) ("separation pay plans," including the exception under subparagraph (iii)) and other applicable provisions of Section 409A. The aggregate of any such payments that would have otherwise been paid during the Code but do not satisfy an exemption from, or period between the conditions of, such Section. Separation Date and the New Payment Date shall be paid to Executive in a lump sum on the New Payment Date. View More Arrow
Found in Novan, Inc. contract
Section 409a. (a) Anything in this Agreement (a)Notwithstanding anything to the contrary notwithstanding, in this Agreement, no payment or benefit to be paid or provided to Executive, if at the time any, pursuant to this Agreement that, when considered together with any other severance payments or separation benefits, is considered deferred compensation under Section 409A of the Executive's separation Internal Revenue Code of 1986, as amended (the "Code"), and the final regulations and any guidance promulgate...d thereunder ("Section 409A") (together, the "Deferred Payments") shall be paid or otherwise provided until Executive has a "separation from service service" within the meaning of Section 409A. Similarly, no severance payable to Executive, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section l.409A-l(b)(9) shall be payable until Executive has a "separation from service" within the meaning of Section 409A. (b)It is intended that none of the Code, payments under this Agreement will constitute "Deferred Payments" but rather will be exempt from Section 409A as a payment that would fall within the Company determines "short-term deferral period" as described in Section 22(d) below or resulting from an involuntary separation from service as described in Section 22(c)(e) below. However, any severance payments or benefits under this Agreement that would be considered Deferred Payments shall be paid on, or, in the case of installments, shall not commence until, the 61st day following Executive's separation from service, or, if later, such time as required by Section 22(c). Except as required by Section 22(c), any installment payments that would have been made to Executive during the 60 day period immediately following Executive's separation from service but for the preceding sentence shall be paid to Executive on the 61st day following Executive's separation from service and the remaining payments shall be made as provided in this Agreement. (c)Notwithstanding anything to the contrary in this Agreement, if Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) 409 A at the time of Executive's termination (other than due to -18- EXECUTION VERSION death), then the Deferred Payments, if any, that are payable within the first six months following Executive's separation from service, shall become payable on the first payroll date that occurs on or after the date six months and one day following the date of Executive's separation from service. All subsequent Deferred Payments, if any, shall be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Executive dies following Executive's separation from service, but before the six month anniversary of the Code, separation from service, then any payments delayed in accordance with this paragraph shall be payable in a lump sum as soon as administratively practicable after the date of Executive's death and all other Deferred Payments shall be payable in accordance with the payment schedule applicable to the extent any each payment or benefit. Each payment and benefit that the Executive becomes entitled to payable under this Agreement or otherwise on account is intended to constitute a separate payment under Section l.409A-2(b)(2) of the Executive's Treasury Regulations. (d)Any amount paid under this Agreement that satisfies the requirements of the "short-term deferral" rule set forth in Section l.409A-l (b)(4) of the Treasury Regulations shall not constitute Deferred Payments for purposes of Section 22(a) above. (e)Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service would pursuant to Section l.409A-l (b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit (as defined below) shall not constitute Deferred Payments for purposes of Section 22(a) above. (f)The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be considered deferred compensation otherwise provided hereunder shall be subject to the 20 percent additional tax imposed pursuant under Section 409A, and any ambiguities herein shall be interpreted to so comply. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition before actual payment to Executive under Section 409A(a) of 409A. In no event will the Code Company reimburse Executive for any tax obligations incurred by Executive 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. 409A. View More Arrow
Found in Vivint Solar, Inc. contract