Common use of Code Section 409 Clause in Contracts

Code Section 409. This Agreement is intended to be exempted from the requirements of Section 409A of the Code, and shall be interpreted and construed consistent with that intent. The Executive hereby agrees that the Company may, without further consent from the Executive, make any and all changes to this Agreement as may be necessary or appropriate to avoid the imposition of additional taxes or penalties on the Executive pursuant to Section 409A of the Code, while not substantially reducing the aggregate value to the Executive of the payments and benefits to, or otherwise adversely affecting the rights of, the Executive under this Agreement. In the case of any reimbursement payment which is required to be made “promptly” under this Agreement, such payment will be made in all instances no later than December 31 of the calendar year following the calendar year in which the obligation to make such reimbursement arises. Notwithstanding the foregoing, if any payments or benefits under this Agreement become subject to Section 409A of the Code, then for the purpose of complying therewith, to the extent such payments or benefits do not satisfy the separation pay exemption described in Treasury Regulation § 1.409A-1(b)(9)(iii) or any other exemption available under Section 409A of the Code (the “Non-Exempt Payments”), if the Executive is a specified employee as described in Treasury Regulation § 1.409A-1(i) on the Date of Termination, any amount of such Non-Exempt Payments which would be paid prior to the six-month anniversary of the Date of Termination shall instead be accumulated and paid to the Executive in a lump sum payment within five (5) business days after such six-month anniversary.

Code Section 409. This Agreement is intended to be exempted from the requirements of comply with Section 409A of the Code, and the interpretative guidance thereunder, including the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in kind distributions, and shall be interpreted and construed consistent with that intentadministered accordingly. The Executive hereby agrees that the Company may, without further consent from the Executive, make any and all the minimum changes to this Agreement as may be necessary or appropriate to avoid the imposition of additional taxes or penalties on the Executive pursuant to Section 409A of the Code, while . The Company can not substantially reducing the aggregate value to the Executive of guarantee that the payments and benefits to, that may be paid or otherwise adversely affecting provided pursuant to this Agreement will satisfy all applicable provisions of Section 409A of the rights of, the Executive under this AgreementCode. In the case of any reimbursement payment which is required to be made “promptly” promptly under this Agreement, such payment will be made in all instances no later than December 31 of the calendar year following the calendar year in which the obligation to make such reimbursement arises. Notwithstanding the foregoing, if any payments or benefits under this Agreement become subject to Section 409A of the Code, then for the purpose of complying therewith, to the extent such payments or benefits do not satisfy the separation pay exemption described in Treasury Regulation § 1.409A-1(b)(9)(iii) or any other exemption available under Section 409A of the Code (the “Non-Exempt Payments”), if the Executive is a specified employee as described in Treasury Regulation § 1.409A-1(i) on the Date date of Terminationtermination, any amount of such Non-Exempt Payments which would be paid prior to the six-month anniversary of the Date date of Termination termination shall instead be accumulated and paid to the Executive in a lump sum payment within five (5) business days after such six-month anniversary. A termination of employment shall be deemed to occur only if it is a “separation from service” as such term is defined under Code Section 409A, and references to “termination,” “termination of employment,” or like terms shall mean a “separation from service.”