Common use of 409A CONSIDERATIONS Clause in Contracts

409A CONSIDERATIONS. To the extent that the final regulations under Section 409A of the Code require modifications to this Agreement in order to avoid that section’s penalty tax, the parties agree to discuss amending this Agreement accordingly. Notwithstanding the foregoing, to the extent the Company reasonably determines that any portion of the payments or benefits payable under this Agreement is subject to Section 409A of the Code, such portion of payments or benefits payable shall (i) to the extent required by Section 409A of the Code, be delayed for six months from the Termination Date or (ii) to the extent permitted under subsequent guidance from the Internal Revenue Service, be otherwise made to comply with such Section 409A requirements, provided, however, that any such action under this subsection (ii) that is more detrimental to Executive than that in subsection (i) shall only be made with Executive’s consent. To the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, the Executive shall not be considered to have terminated employment with the Company for purposes of the Agreement and no payments shall be due under the Agreement which are payable upon termination of employment until the Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A