Section 409A Requirements Clause Samples

Section 409A Requirements. Notwithstanding anything to the contrary in this Agreement, the following provisions shall apply to any payments and benefits otherwise payable to or provided to Employee under this Agreement: (a) For purposes of Section 409A, (i) each “payment” (as defined by Section 409A) made under this Agreement shall be considered a “separate payment,” and (ii) payments shall be deemed exempt from the definition of deferred compensation under Section 409A to the fullest extent possible under the “short-term deferral” exemption of Treasury Regulation § 1.409A-1(b)(4), which exemption is hereby incorporated by reference. (b) If Employee is a “specified employee” as determined by the Company consistent with Section 409A as of his separation from service, to the extent any payment under this Agreement constitutes deferred compensation subject to Section 409A, and to the extent required by Section 409A, no payments due under this Agreement may be made until the earlier of: (i) the first day of the seventh month following Employee’s separation from service, or (ii) Employee’s date of death; provided, however, that any payments delayed during this six- month period shall be paid in a lump sum on the first day of the seventh month following Employee’s separation from service. Such lump sum payments shall include interest from the scheduled payment date to the date of actual payment at an annual rate equal to the prime rate as set forth in the Eastern edition of The Wall Street Journal on the business day immediately preceding Employee’s date of separation from service. Any payment due under this Agreement upon termination of employment that is subject to Section 409A shall only be made upon a “separation from service” as that term is defined under Section 409A. (c) In the event there is a 6-month delay in payments under subparagraph 27(b) above, the Company shall establish and fund an irrevocable “rabbi” trust, in form and substance reasonable satisfactory to Employee, effective as of the beginning of the 6-month period and ending upon the close of such period, to secure the payment of all such delayed amounts to Employee.

Section 409A Requirements. This 409A Addendum supplements and amends the Employment Agreement and is intended to comply with the provisions of Section 409A, to the extent applicable to payments under the Employment Agreement. If the provisions of this 409A Addendum are inconsistent with the Employment Agreement, the terms of this 409A Addendum will govern.

Section 409A Requirements. For purposes of complying with Section 409A of the Code, if the RSUs constitute non-qualified deferred compensation, Employee is a U.S. taxpayer and the RSUs are to be settled at a time that is by reference to a termination of Employee’s employment, the Employer and Employee shall take all steps necessary (including with regard to any post-termination services by Employee) to ensure that a termination contemplated under Section 3 constitutes a “separation from service” within the meaning of Section 409A of the Code. Further, if and the foregoing sentence applies and Employee is a “specified employee” (within the meaning of Code Section 409A) at the time settlement would otherwise occur, settlement of the RSUs and any related dividend payments will be delayed until the first day of the seventh month following the date of such separation from service or, if earlier, until Employee’s death.

Section 409A Requirements. It is intended that this Agreement shall comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury regulations relating thereto and any Internal Revenue Service or Treasury rules or other guidance issued thereunder (collectively, “Code Section 409A”). It is also intended that amounts payable pursuant to Section 4.2 of this Agreement qualify for certain exceptions to the definition of “deferred compensation” within the meaning of Code Section 409A. Notwithstanding any other provision in this Agreement to the contrary, if Employee is considered a “specified employee” within the meaning of Code Section 409A (as determined in accordance with the methodology established by the Company as in effect on the date of termination), any payment that constitutes “deferred compensation” within the meaning of Code Section 409A that is otherwise due to Employee under this Agreement during the six-month period immediately following Employee's separation from service (as determined in accordance with Code Section 409A) on account of Employee's separation from service shall be accumulated and paid to Employee on the first business day of the seventh month following his Date of Termination. Each severance pay installment paid pursuant to Section 4.2 of this Agreement shall be treated as a separate payment for purposes of Code Section 409A. Notwithstanding any other provision in this Agreement to the contrary, any references to termination of employment or Date of Termination shall mean and refer to the date of Employee's “separation from service” as that term is defined in Code Section 409A.

Section 409A Requirements. This Option is intended to be exempt from Code Section 409A, and this Agreement shall be interpreted and operated in accordance with this intent.

Section 409A Requirements. For purposes of complying with Section 409A of the Code, if the RSUs constitute non-qualified deferred compensation, Employee is a U.S. taxpayer and the RSUs are to be

Section 409A Requirements. To the extent applicable, this Agreement shall be interpreted, construed and operated in accordance with the Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury regulations and other guidance issued thereunder. If on the date of the Employee’s separation from service (as defined in Treasury Regulation §1.409A-1(h)) with the Company the Employee is a specified employee (as defined in Code Section 409A and Treasury Regulation §1.409A-1(i)), then, notwithstanding any other provision of this Agreement, no payment constituting the “deferral of compensation” within the meaning of Treasury Regulation §1.409A-1(b) and after application of the exemptions provided in Treasury Regulation §§1.409A-1(b)(4) and 1.409A-1(b)(9)(iii) shall be made to the Employee at any time during the six (6) month period following the Employee’s separation from service, and any such amounts shall instead be paid in a lump sum on the first payroll payment date following expiration of such six (6) month period. For purposes of conforming this Agreement to Section 409A of the Code, the parties agree that any reference to termination of employment, severance from service or similar terms shall mean a “separation from service” as defined in Treasury Regulation §1.409A-1(h).

Section 409A Requirements. This Agreement is intended to satisfy in form and operation the requirements of the terms of Section 409A of the Code to the extent applicable and any applicable guidance or regulations, including transition rules, thereunder (collectively, “Section 409(A)”). To the extent required by Section 409A, and notwithstanding any other provision of this Agreement, no payment or benefit that constitutes deferred compensation for purposes of Section 409A will be provided to the Executive following his separation from service prior to the first to occur of (i) the date of the Executive’s death or (ii) the first day of the seventh month following the month in which his separation from service occurs, if he is a “specified employee” (as defined under Section 409A(a)(2)(B)(i) of the Code). Any payment that is delayed pursuant to the provisions of the immediately preceding sentence shall instead be paid in a lump sum promptly following the first to occur of the two dates specified in the immediately preceding sentence. Without limiting the generality of the foregoing, the payments provided for in Section 20 (a)(i) shall be delayed as provided for in this Section 27 if the Executive is a “specified employee”. Furthermore and notwithstanding any other provision of this Agreement to the contrary, this Agreement is deemed to be modified in any way necessary to satisfy the requirements of Section 409A as determined by the Company in its good faith discretion. EXECUTIVE UNDERSTANDS THAT THIS AGREEMENT AFFECTS HIS RIGHTS TO INVENTIONS EXECUTIVE MAKES DURING EMPLOYMENT WITH THE COMPANY, AND RESTRICTS EXECUTIVE’S RIGHTS TO DISCLOSE OR USE THE COMPANY'S CONFIDENTIAL INFORMATION AND TO COMPETE IN BUSINESS WITH THE COMPANY, DURING AND AFTER SUCH EMPLOYMENT. EXECUTIVE HAS CAREFULLY READ THIS EMPLOYMENT AGREEMENT AND UNDERSTANDS ITS TERMS. EXECUTIVE HAS COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT. Dated: August 1, 2006 Signature /s/ B▇▇▇▇ ▇▇▇▇▇▇▇▇ B▇▇▇▇ ▇▇▇▇▇▇▇▇ Dated: August 1, 2006 By: /s/ S▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ S▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Chief Financial Officer n The achievement of the following objectives with Threshold Performance equal to a payment of 50% of Target Incentive; Target Performance equal to a payment of 100% of Target Incentive; and Maximum Performance equal to a payment of 200% of Target Incentive, each adjusted by weighting for each performance objective. The calculation of the incentive payment shall be based on the actual performance level achieved and scored consis...

Section 409A Requirements. Notwithstanding the foregoing, the provision of any payment or benefit under Section 8(c), 8(d) or 8(e) hereof shall comply with the requirements of Treas. Reg. § 1.409A-3(i)(1)(iv) for reimbursement and in-kind benefit plans, to the extent applicable. For this purpose, (i) the amount of expenses eligible for reimbursement, or benefits provided, in one calendar year shall not affect the expenses eligible for reimbursement, or benefits to be provided, in any other calendar year, (ii) the reimbursement of any expense shall be made promptly, but in no event later than the last day of the calendar year next following the calendar year in which the expense was incurred, and (iii) the right to any reimbursement or benefit shall not be subject to liquidation or exchange for any other benefit.