Common use of Additional Section 409A Provisions Clause in Contracts

Additional Section 409A Provisions. Although any and all payments contemplated under this Agreement are intended to be exempt from Section 409A of the Code, if (a) any payment hereunder is ultimately subject to Section 409A of the Code, (b) such payment is to be paid on account of Executive’s separation from service (within the meaning of Section 409A of the Code), and (c) Executive is a “specified employee” (within the meaning of Section 409A(a)(2)(B) of the Code), then such payment shall be delayed, if necessary, until the first day of the seventh month following Executive’s separation from service (or, if later, the date on which such payment is otherwise to be paid under this Agreement). With respect to any payments hereunder that are subject to Section 409A of the Code and that are payable on account of a separation from service, the determination of whether Executive has had a separation from service shall be determined in accordance with Section 409A of the Code. It is the intention of both the Company and Executive that the benefits and rights to which Executive could be entitled in connection with termination of employment comply with Section 409A of the Code and the Treasury Regulations and other guidance promulgated or issued thereunder, and the provisions of this Agreement shall be construed in a manner consistent with that intention. If Executive or the Company believes, at any time, that any such benefit or right does not so comply, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such benefits and rights such that they comply with Section 409A of the Code (with the most limited possible economic effect on Executive and on the Company). Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A of the Code, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. For purposes of applying the provisions of Section 409A to this Agreement, each separately identified amount to which Executive is entitled under this Agreement shall be treated as a separate payment. In addition, to the extent permissible under Section 409Aof the Code, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments.

Additional Section 409A Provisions. Although Notwithstanding any and provision in this Agreement to the contrary— (a) Any payment otherwise required to be made hereunder to Executive at any date as a result of the termination of Executive’s employment shall be delayed for such period of time as may be necessary to meet the requirements of Section 409A(a)(2)(B)(i) of the Code (the ”Delay Period”). On the first business day following the expiration of the Delay Period, Executive shall be paid, in a single cash lump sum, an amount equal to the aggregate amount of all payments contemplated under this Agreement are intended delayed pursuant to the preceding sentence, and any remaining payments not so delayed shall continue to be exempt from paid pursuant to the payment schedule set forth herein. (b) Each payment in a series of payments hereunder shall be deemed to be a separate payment for purposes of Section 409A of the Code, if . (ac) To the extent that any right to reimbursement of expenses or payment hereunder is ultimately subject to Section 409A of the Code, (b) such payment is to be paid on account of Executive’s separation from service any benefit in-kind under this Agreement constitutes nonqualified deferred compensation (within the meaning of Section 409A of the Code), (i) any such expense reimbursement shall be made by the Company no later than the last day of the taxable year following the taxable year in which such expense was incurred by Executive, (ii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (ciii) Executive is a “specified employee” (within the meaning 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 arrangement covered by Section 409A(a)(2)(B105(b) of the Code), then Code solely because such payment shall be delayed, if necessary, until the first day of the seventh month following Executive’s separation from service (or, if later, the date on which such payment is otherwise to be paid under this Agreement). With respect to any payments hereunder that expenses are subject to a limit related to the period the arrangement is in effect. (d) While the payments and benefits provided hereunder are intended to be structured in a manner to avoid the implication of any penalty taxes under Section 409A of the Code, in no event whatsoever shall the Parent or any of its affiliates (including, without limitation, the Company) be liable for any additional tax, interest, or penalties that may be imposed on Executive as a result of Section 409A of the Code and that are payable on account of a separation from service, the determination of whether Executive has had a separation from service shall be determined in accordance with Section 409A of the Code. It is the intention of both the Company and Executive that the benefits and rights or any damages for failing to which Executive could be entitled in connection with termination of employment comply with Section 409A of the Code and the Treasury Regulations and other guidance promulgated or issued thereunder, and the provisions of this Agreement shall be construed in a manner consistent with that intention. If Executive or the Company believes, at any time, that any such benefit or right does not so comply, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such benefits and rights such that they comply with Section 409A of the Code (with the most limited possible economic effect on Executive and on the Company). Neither the Company nor Executiveother than for withholding obligations or other obligations applicable to employers, individually or in combinationif any, may accelerate any payment or benefit that is subject to under Section 409A of the Code, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. For purposes of applying the provisions of Section 409A to this Agreement, each separately identified amount to which Executive is entitled under this Agreement shall be treated as a separate payment. In addition, to the extent permissible under Section 409Aof the Code, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments).

Additional Section 409A Provisions. Although Notwithstanding any and all payments contemplated under provision contained in this Agreement are intended to be exempt from Section 409A of the Codecontrary, if (a) any payment hereunder is ultimately subject to Section 409A of the Code, (b) such payment is to be paid on account of Executive’s separation from service (within the meaning 's termination of Section 409A of the Code), employment and (c) Executive is a “"specified employee” " (within the meaning of Section 409A(a)(2)(B) of the Code), then such payment shall be delayed, if necessary, until paid on the later of the first day of the seventh month following Executive’s separation from service ('s termination of employment or, if later, the date on which such payment is otherwise to be paid under this Agreement). With respect to any payments hereunder that are subject to Section 409A of the Code and that are payable on account of a separation from servicetermination of employment (or any similar term or phrase), the determination of whether Executive Executive’s employment has had a separation from service terminated shall be determined made in accordance with Section 409A of the CodeCode and Treasury Regulations related to such Code Section that define when Executive shall be deemed to have incurred a “separation from service” (as the phrase is used for purposes of Code Section 409A). It is the intention of both the Company and Executive that the benefits and rights to which Executive could be entitled in connection with termination of employment either be exempt from or comply with Section 409A of the Code and the Treasury Regulations and other guidance promulgated or issued thereunder, and the provisions of this Agreement shall be construed in a manner consistent with that intention. If Executive or the Company believes, at any time, that any such benefit or right does not so complyis neither exempt nor in compliance with Code Section 409A, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such benefits and rights such that they comply with Section 409A of the Code (with the most limited possible economic effect on Executive and on the Company). Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A of the Code, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. For purposes of applying the provisions of Section 409A to this Agreement, each separately identified amount to which Executive is entitled under this Agreement shall be treated as a separate payment. In addition, to the extent permissible under Section 409Aof the Code, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments.409A.

Additional Section 409A Provisions. Although Notwithstanding any and all payments contemplated under provision in this Agreement are intended to be exempt the contrary: (a)If at the time of the Employee’s separation from service within the meaning of Section 409A of the Code, if (athe Company determines that the Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment hereunder or benefit that the Employee becomes entitled to under this Agreement on account of the Employee’s separation from service is ultimately “non-qualified deferred compensation” subject to Section 409A of the CodeCode and not otherwise exempt, (b) such payment shall not be payable and such benefit shall not be provided until the date that is to be paid on account the earlier of Executive(i) six months and one day after the Employee’s separation from service service, or (ii) the Employee’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)Each payment in a series of payments hereunder shall be deemed to be a separate payment for purposes of Section 409A of the Code. Neither the Company nor Employee shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A. (c)To the extent that any right to reimbursement of expenses or payment of any benefit in-kind under this Agreement constitutes nonqualified deferred compensation (within the meaning of Section 409A of the Code), (i) any such expense reimbursement or payment shall be made by the Company no later than the last day of the taxable year following the taxable year in which such expense was incurred by Employee, (ii) the right to reimbursement, payment or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (ciii) Executive is a “specified employee” (within the meaning amount of expenses eligible for reimbursement, payment 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 arrangement covered by Section 409A(a)(2)(B105(b) of the Code), then Code solely because such payment shall be delayed, if necessary, until the first day of the seventh month following Executive’s separation from service (or, if later, the date on which such payment is otherwise to be paid under this Agreement). With respect to any payments hereunder that expenses are subject to a limit related to the period the arrangement is in effect. (d)To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code Code, and to the extent that are such payment or benefit is payable on account upon the Employee’s termination of a employment, then such payments or benefits shall be payable only upon the Employee’s “separation from service, the .” The determination of whether Executive has had and when a separation from service has occurred shall be determined made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A‑1(h). (e)The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. It To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the intention Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of both the Company Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and Executive that the benefits and rights as may be necessary to which Executive could be entitled in connection with termination of employment fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the Treasury Regulations payments and other guidance promulgated or issued thereunder, benefits provided hereunder without additional cost to either party. While the payments and the provisions of this Agreement shall benefits provided hereunder are intended to be construed structured in a manner consistent with that intention. If Executive or to avoid the implication of any penalty taxes under Section 409A of the Code, in no event whatsoever shall the Company believesor any of its affiliates be liable for any additional tax, at interest, or penalties that may be imposed on Employee as a result of Section 409A of the Code or any time, that any such benefit or right does not so comply, it shall promptly advise the other and shall negotiate reasonably and in good faith damages for failing to amend the terms of such benefits and rights such that they comply with Section 409A of the Code (with the most limited possible economic effect on Executive and on the Company). Neither the Company nor Executiveother than for withholding obligations or other obligations applicable to employers, individually or in combinationif any, may accelerate any payment or benefit that is subject to under Section 409A of the Code, except in compliance with ). Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. For purposes of applying the provisions of Section 409A to this Agreement, each separately identified amount to which Executive is entitled under this Agreement shall be treated as a separate payment. In addition, to the extent permissible under Section 409Aof the Code, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments11.