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 (i) The parties agree that this Agreement
shall be interpreted to comply with or be exempt from Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the "Code"), and the regulations and authoritative guidance promulgated thereunder to the
contrary notwithstanding, if at extent applicable (collectively, "Section 409A"), and all provisions of this Agreement shall be construed in a manner consistent with the
time requirements for avoiding taxes or penalties under Sect...ion 409A. In no event whatsoever will the Company, any of its affiliates or any of their respective directors, officers, agents, attorneys, employees, executives, shareholders, investors, members, managers, trustees, fiduciaries, representatives, principals, accountants, insurers, successors or assigns be liable for any additional tax, interest or penalties that may be imposed on Employee under Section 409A or any damages for failing to comply with Section 409A. 11 (ii) Six-Month Delay for Specified Employees. If any payment, compensation or other benefit provided to Executive in connection with the Executive's separation from service termination of his employment is determined, in whole or in part, to constitute "nonqualified deferred compensation" within the meaning of Section 409A and Executive is a specified employee as defined in Section 409A(2)(B)(i) of the Code, no part of such payments shall be paid before the Company determines day that is six (6) months plus one (1) day after the date of termination or, if earlier, ten business days following the Executive's death (the "New Payment Date"). The aggregate of any payments that otherwise would have been paid to Executive during the period between the date of termination and the New Payment Date shall be paid to Executive 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. (iii) Termination as Separation from Service. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits subject to Section 409A upon or following a termination of employment unless such termination is also a "specified employee" "separation from service" within the meaning of Section 409A(a)(2)(B)(i) 409A, and for purposes of the Code, then any such provision of this Agreement, references to the extent any payment a "resignation," "termination," "terminate," "termination of employment" or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's like terms shall mean 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 service. (iv) Payments for Reimbursements, and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but In-Kind Benefits. 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 calendar year following the taxable calendar 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 Executive 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 that 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. (v) Payments Within Specified Number of Days. Whenever a payment or benefit described in under this Agreement constitutes "non-qualified deferred compensation" under Section 409A specifies a payment period with reference to a number 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 days (e.g., "payment shall be made in accordance with within thirty (30) days following the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will date of termination"), the actual date of payment within the specified period shall be administered in accordance with Section 409A within the sole discretion of the Code. To the extent that Company. (vi) Installments as Separate Payment. For purposes of Section 409A, Executive's 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 installment payments hereunder comply with Section 409A of the Code. Each 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 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. distinct payments.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time It is intended that all 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 severance benefits and other payments payable under this Agreement
or otherwise on account of the... Executive's separation from service would be considered deferred compensation otherwise subject satisfy, to the 20 percent additional tax imposed pursuant to Section 409A(a) of greatest extent possible, the Code as a result of exemptions from the application of Code Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and such benefit shall not be provided until the date that is the earlier of (A) six months 1.409A-1(b)(9), 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 will be provided by construed to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid greatest extent possible 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, consistent with those provisions, 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 no so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Code 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 (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A-2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by either party, the Company at the time of Executive's Separation from Service to be a "specified employee" for purposes of Code Section 409A(a)(2)(B)(i), and as may be necessary to fully comply with Section 409A if any of the Code and all related rules and regulations payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to preserve avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) the expiration of the six-month period measured from the date of Executive's Separation from Service with the Company, (ii) the date of Executive's death or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Code but do not satisfy an exemption from, first business day following the expiration of such time period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Executive, and any remaining 4 payments due shall be paid as otherwise provided herein or in the conditions of, such Section. applicable agreement. No interest shall be due on any amounts so deferred.
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Section 409a. (a)
Anything in It is intended that the payments provided under this Agreement
to comply with, or be exempt from, Section 409A. It is also intended that the
contrary notwithstanding, if at the time terms "termination" and "termination of
the Executive's employment" as used herein shall constitute a separation from service within the meaning of Section
409A 409A. (b) Notwithstanding any provision of
this Agreement to the
Code, the Company determines that contrary, if the Executive is a "specified
... employee" within the meaning of Section 409A(a)(2)(B)(i) 409A, distribution of any amounts that constitute "deferred compensation" payable to the Executive due to her termination of employment, shall not be made before six months after such separation from service or the Executive's death, if earlier (the "Six Month Limitation"). At the end of such six-month period, payments that would have been made but for the Six Month Limitation shall be paid in a lump sum, on the first day 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 seventh month following 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 and remaining payments 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, commence 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 continue, in accordance with their original schedule. (b) All in-kind benefits provided the relevant provision of this Agreement. (c) With regard to any provision herein that provides for reimbursement of costs and expenses eligible for reimbursement under this Agreement shall be provided or in-kind benefits, except as permitted by Section 409A, (i) 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 shall not be subject to liquidation or exchange for another benefit. (c) To benefit, (ii) the extent amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that this clause (ii) shall not be violated with regard to expenses reimbursed under any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under arrangement covered by Section 409A 105(b) of the Code, and Code solely because such expenses are subject to a limit related to the extent that such payment or benefit period the arrangement is payable upon the Executive's termination of employment, then in effect and (iii) such payments or benefits shall be payable only upon made, on or before that last day of Executive's taxable year following the Executive's "separation from service." The determination year in respect of whether and when a separation from service has occurred shall be made in accordance with which the presumptions set forth in Treasury Regulation Section 1.409A-1(h). amounts subject to reimbursement were incurred or paid. (d) The parties intend further agree that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement there is ambiguous no guarantee as to its compliance with Section 409A the tax consequences 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 provided 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. hereunder.
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Section 409a.
(a) Anything 20.1 General Compliance. This Agreement is intended to comply with Section 409A or an exemption thereunder and shall be construed and administered in
accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement
may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to
t...he contrary notwithstanding, if at the time of the Executive's an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a "separation from service" under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Employee on account of non-compliance with Section 409A. 17 20.2 Specified Employees. Notwithstanding any other provision of this Agreement, if any payment or benefit provided to the Employee in connection with his termination of employment is determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A of and the Code, the Company determines that the Executive Employee is determined to be a "specified employee" within the meaning of as defined in Section 409A(a)(2)(B)(i) of the Code, 409A(a)(2)(b)(i), then to the extent any such payment or benefit that 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 paid until the first payroll date that is to occur following the earlier six-month anniversary of (A) six months and one day after the Executive's separation from service, or (B) Termination Date or, if earlier, on the Executive's death. If Employee's death (the "Specified Employee Payment Date"). The aggregate of any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts payments that would otherwise have been paid during before the six-month period but Specified Employee Payment Date and interest on such amounts calculated based on the applicable federal rate published by the Internal Revenue Service for the application of this provision, and month in which the balance of the installments Employee's separation from service occurs shall be payable paid to the Employee in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule. (b) All 20.3 Reimbursements. To the extent required by Section 409A, each reimbursement or in-kind benefits benefit provided and expenses eligible for reimbursement under this Agreement shall be provided by in accordance with the Company following: (a) the amount of expenses eligible for reimbursement, or incurred by in-kind benefits provided, during each calendar year cannot affect the Executive during the time periods set forth expenses eligible for reimbursement, or in-kind benefits to be provided, in this Agreement. All reimbursements any other calendar year: (b) any reimbursement of an eligible expense shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after to the Employee on or before 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 incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in incurred; and (c) any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement reimbursements or in-kind benefits is under this Agreement shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in 20.4 Tax Gross-ups. Any tax gross-up payments provided under this Agreement constitutes "non-qualified deferred compensation" under Section 409A shall be paid to the Employee on or before December 31 of the Code, and to calendar year immediately following the extent that such payment or benefit is payable upon calendar year in which the Executive's termination of employment, then such payments or benefits shall be payable only upon Employee remits 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. taxes.
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Section 409a. (a)
Anything Compliance. Notwithstanding anything herein to the contrary, this Plan is intended to be interpreted and applied so that the payments and benefits set forth herein either shall be exempt from the requirements of Section 409A of the Code or shall comply with the requirements of Section 409A of the Code, and accordingly, to the maximum extent permitted, this Plan shall be interpreted to be exempt from or in compliance with Section 409A of the Code. To the extent that the Company deter...mines that any provision of this Plan would cause a Participant to incur any additional tax or interest under Section 409A of the Code, the Company shall be entitled to reform such provision to attempt to comply with or be exempt from Section 409A of the Code through good faith modifications. To the extent that any provision hereof is modified in order to comply with Section 409A of the Code, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Participants and the Company without violating the provisions of Section 409A of the Code. Notwithstanding any of the foregoing to the contrary, none of the Company or its subsidiaries or affiliates or any of their officers, directors, members, employees, agents, advisors, predecessors, successors, or equity holders shall have any liability for the failure of this Plan to be exempt from, or to comply with, the requirements of Section 409A of the Code. Each payment and/or benefit provided hereunder shall be a payment in a series of separate payments for purposes of Section 409A of the Code. (b) Separation from Service. Notwithstanding anything in this Agreement Plan to the contrary notwithstanding, if at contrary, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Plan unless such termination is also a "separation from service" within the time meaning of Section 409A of the Executive's separation from service Code. (c) Specified Employee. Notwithstanding anything in this Plan to the contrary, if a Participant is deemed to be a "specified employee" within the meaning of Section 409A of the Code, the Company determines any payments or benefits due upon a termination of Participant's employment under any arrangement that the Executive is constitutes a "specified employee" "deferral of compensation" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) 409A of the Code as (whether under this Plan or any other plan, program or payroll practice) and which do not otherwise qualify under the exemptions under Treasury Regulations Section 1.409A- 1 (including the short-term deferral exemption and the permitted payments under Treasury Regulations Section 1.409A- 1 (b)(9)(iii)(A)), shall be delayed and paid or provided to Participant in 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 lump sum on the earlier of (A) (i) the date which is six months and one day after Participant's "separation from service" (as such term is defined in Section 409A of the Executive's separation from service, Code) for any reason other than death, and (ii) the date of Participant's death. 5 (d) Reimbursements. To the extent that any right to reimbursement of expenses or (B) payment of any benefit in-kind under this Plan constitutes nonqualified deferred compensation (within the Executive's death. If meaning of Section 409A of the Code), (i) 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 expense reimbursement 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 made by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after later than the last day of the 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 Participant, (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 It is intended that all 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 Severance Benefits and other payments payable under this Agreement
or otherwise on account of the... Executive's separation from service would be considered deferred compensation otherwise subject satisfy, to the 20 percent additional tax imposed pursuant to Section 409A(a) of greatest extent possible, the Code as a result of 5 exemptions from the application of Code Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and such benefit shall not be provided until the date that is the earlier of (A) six months 1.409A-1(b)(9), 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 will be provided by construed to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid greatest extent possible 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, consistent with those provisions, 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 not so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Code 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 (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A-2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by either party, the Company at the time of Executive's Separation from Service to be a "specified employee" for purposes of Code Section 409A(a)(2)(B)(i), and as may be necessary to fully comply with Section 409A if any of the Code and all related rules and regulations payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to preserve avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) the expiration of the six-month period measured from the date of Executive's Separation from Service with the Company, (ii) the date of Executive's death or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code but do not satisfy an exemption from, Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Section. applicable agreement. No interest shall be due on any amounts so deferred.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time It is intended that all 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 severance benefits and other payments payable under this Agreement
or otherwise on account of the... Executive's separation from service would be considered deferred compensation otherwise subject satisfy, to the 20 percent additional tax imposed pursuant to Section 409A(a) of greatest extent possible, the Code as a result of exemptions from the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and such benefit shall not be provided until the date that is the earlier of (A) six months 1.409A-1(b)(9), 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 will be provided by construed to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid greatest extent possible 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, consistent with those provisions, 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 not so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes 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 (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A-2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by either party, the Company at the time of Executive's Separation from Service to be a "specified employee" for purposes of Section 409A(a)(2)(B)(i), and as may be necessary to fully comply with Section 409A if any of the Code and all related rules and regulations payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to preserve avoid a prohibited distribution under Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) the expiration of the six-month period measured from the date of Executive's Separation from Service with the Company; (ii) the date of Executive's death; or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Code but do not satisfy an exemption from, first business day following the expiration of such time period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Section. applicable agreement. No interest shall be due on any amounts so deferred.
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Section 409a.
(a) Anything in The parties intend for the payments and benefits under this Agreement to
be exempt from Section 409A or, if not so exempt, to be paid or provided in a manner which complies with the
contrary notwithstanding, if at requirements of such section, and intend that this Agreement shall be construed and administered in accordance with such intention. If any payments or benefits due to Executive hereunder would cause the
time application of an accelerated or additional tax under Section ...409A, such payments or benefits shall be restructured in a manner which does not cause such an accelerated or additional tax. For purposes of the limitations on nonqualified deferred compensation under Section 409A, each payment of compensation under this Agreement shall be treated as a separate payment of compensation. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the 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 six-month period immediately following Executive's separation from service within shall instead be paid on 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 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 first business day after the date that is the earlier of (A) six months and one day after following Executive's termination date (or death, if earlier), with interest from the Executive's separation from service, or (B) the Executive's death. If any date 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 at the six-month period short-term applicable federal rate, compounded semi-annually, as determined under Section 1274 of the Code for the month in which payment would have been made but for the application delay in payment required to avoid the imposition of an additional rate of tax on Executive under Section 409A. Notwithstanding anything to the contrary in this provision, Agreement, all (A) reimbursements and the balance of the installments shall be payable in accordance with their original schedule. (b) All (B) in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be made or provided by in accordance with the Company requirements of Section 409A, including, where applicable, the requirement that (x) the amount of expenses eligible for reimbursement, or incurred by in kind benefits provided, during a calendar year may not affect the Executive during expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year; (y) the time periods set forth in this Agreement. All reimbursements shall reimbursement of an eligible expense will be paid as soon as administratively practicable, but in made no event shall any reimbursement be paid after later than the last day of the taxable calendar 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 is incurred; and (z) 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 in kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Section 409a.
(a) Anything in 22.1The Parties' Intent. The intent of the Parties is that payments and benefits under this Agreement
to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of comply with or be exempt for Section 409A of the
Code, Code and the regulations and guidance promulgated thereunder (collectively, "Code Section 409A"), and this Agreement and any associated documents shall be interpreted and construed in a manner the establishes an ex...emption from (or compliance with Code Section 409A). Any terms of this Agreement that are undefined or ambiguous shall be interpreted in a manner that complies with Code Section 409A to the extent necessary to comply with Code Section 409A. If for any reason, such imprecision in drafting any provision of this Agreement (or any award of compensation, including, without limitation, equity compensation or benefits) does not accurately reflect its intended establishment as an exemption from (or compliance with Code Section 409A), as demonstrated by consistent interpretations or other evidence of intent, such provision shall be considered ambiguous as to its exemption from (or compliance with) Code Section 409A and shall be interpreted in a manner consistent with such intent, as determined in the discretion of the Company. 22.2 Separation from Service. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for any payment of any amounts or benefits that the Company determines that the Executive may be considered nonqualified deferred compensation under Code Section 409A upon or following termination of employment unless 19 such termination is a "specified employee" within "Separation of Service" with the meaning of Code Section 409A(a)(2)(B)(i) 409A, and, for purposes 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 provision of this provision, and the balance Agreement, references to a "termination," "termination 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 employment" 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 like shall mean a separation 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." service. The determination of whether and when a separation from of service has occurred for purposes of this Agreement shall be made in in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulation Section 1.409A-1(h). (d) The parties intend that Regulations. 22.3 Reimbursements. Any reimbursements and in-kind benefits provided under this Agreement will that constitute deferred compensation within the meaning of Code Section 409A shall be administered made or provided in accordance with the requirements of Code Section 409A 409a, including, without limitation, that in no event shall any fees, expenses or other amounts eligible to be reimbursed by the Company under this Agreement be paid later that the last day of the Code. To calendar year next following the calendar year in which the applicable fees, expenses or other amounts were incurred. 22.4 Payments. For purposes of Code Section 409A, the Executive's right to receive any installment payments shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (for example, "payment shall be made within thirty (30) days following the date of termination), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent that any provision of this Agreement such payment is ambiguous as subject to its compliance with Code 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) 409A. 22.5 No Company Warranties. The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of in this Agreement are determined to constitute deferred compensation subject to Code Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Code Section 409A.
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Section 409a.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time It is intended that all 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 severance benefits and other payments payable under this Agreement
or otherwise on account of the... Executive's separation from service would be considered deferred compensation otherwise subject satisfy, to the 20 percent additional tax imposed pursuant to Section 409A(a) of greatest extent possible, the Code as a result of exemptions from the application of Code Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and such benefit shall not be provided until the date that is the earlier of (A) six months 1.409A-1(b)(9), 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 will be provided by construed to the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid greatest extent possible 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, consistent with those provisions, 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 not so exempt, this Agreement (and any definitions hereunder) will be administered construed in accordance a manner that complies with Section 409A 409A. For purposes of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Code 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 (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that 1.409A-2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement may (whether severance payments, reimbursements or otherwise) shall be amended, treated as reasonably requested a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by either party, the Company at the time of Executive's Separation from Service to be a "specified employee" for purposes of Code Section 409A(a)(2)(B)(i), and as may be necessary to fully comply with Section 409A if any of the Code and all related rules and regulations payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments is required in order to preserve avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments and benefits shall not be provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability Executive prior to the Executive earliest of (i) 5. the expiration of the six-month period measured from the date of Executive's Separation from Service with the Company, (ii) the date of Executive's death or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to (iii) such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code but do not satisfy an exemption from, Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph shall be paid in a lump sum to Executive, and any remaining payments due shall be paid as otherwise provided herein or in the conditions of, such Section. applicable agreement. No interest shall be due on any amounts so deferred.
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