Code Section 409A Matters Sample Clauses

Code Section 409A Matters. (a) It is the intention of the Company and Employee that the payments, benefits and rights to which Employee could be entitled pursuant to this Agreement comply with or be exempt from Section 409A of the Code (or any successor provision thereto), to the extent that the requirements of Section 409A of the Code are applicable thereto, after application of all available exemptions (including without limitation the “short-term deferral rule” and “involuntary separation pay plan exception”). The provisions of this Agreement shall be construed in a manner consistent with that intention. If any provision of this Agreement contravenes any applicable regulations or Treasury guidance promulgated under Section 409A of the Code, or would cause Employee to incur any additional tax, interest or penalty under Section 409A of the Code, the Company and Employee agree in good faith to reform this Agreement to comply with Section 409A of the Code. Furthermore, in the event that any benefits payable or otherwise provided under this Agreement would be deemed to constitute non-qualified deferred compensation subject to Section 409A of the Code, the Company will have the discretion, without violating the provisions of Section 409A of the Code or the Treasury guidance thereunder, to adjust the terms of such payment or benefit (but not the amount or value thereof) as reasonably necessary or appropriate to avoid the imposition of any excise tax or other penalty with respect to such payment or benefit under Section 409A of the Code. Any provision required for compliance with Section 409A of the Code that is omitted from this Agreement shall be incorporated herein by reference and shall apply retroactively, if necessary, and be deemed a part of this Agreement to the same extent as though expressly set forth herein. The Company makes no representation with respect to the tax treatment of the payments and/or benefits provided under this Agreement, and in no event will Company be liable for, pay or reimburse any additional tax, interest or penalties that may be imposed on Employee under Code Section 409A. (b) For purposes of applying the provisions of Section 409A of the Code to this Agreement, each separately identified amount to which Employee is entitled under this Agreement shall be treated as a separate payment within the meaning of Section 409A of the Code. In addition, to the extent permissible under Section 409A of the Code, any series of installment payments under this Agreemen...

Code Section 409A Matters. Anything in this Agreement to the contrary notwithstanding, if (A) on the date of Executive’s “separation from service” (within the meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”)) with the Company, Executive is a “specified employee” (within the meaning of Section 409A(a)(2)(B)(i) of the Code) and (B) as a result of such separation from service, Executive would receive any payment under this Agreement that, absent the application of this Section 8.5, would be subject to the additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is the earliest of (1) six months after the Executive’s separation from service, (2) the Executive’s death or (3) such other date as will cause such payment not to be subject to such additional tax. Any payments which are required to be delayed as a result of this Section 8.5 shall be accumulated and paid as a lump-sum on the earliest possible date determined in accordance the preceding sentence.

Code Section 409A Matters. Notwithstanding any provision of this Agreement to the contrary, if, at the time of Executive’s “separation of service” (as defined under Code Section 409A) with the Company, Executive is a “specified employee” (as defined in Code Section 409A) and the deferral of the payment or commencement of payment of any severance payments or benefits otherwise payable pursuant to this Agreement (when considered together with any other severance payments or separation benefits that may be considered deferred compensation under Section 409A (together, the “Deferred Compensation Separation Benefits”)) as a result of such separation of service is necessary in order to prevent any accelerated income recognition or additional tax under Code Section 409A(a)(1), then the Company will not pay or commence any payment of any such Deferred Compensation Separation Benefits otherwise required hereunder (but without any reduction in such payments or benefits ultimately paid or provided to Executive) that will not and may not under any circumstances, regardless of when such separation of service occurs, be paid in full by March 15th of the year following Executive’s separation of service until the first payroll date that occurs after the date that is six (6) months following Executive’s separation of service date. If any Deferred Compensation Separation Benefits are delayed under the prior sentence, such amounts will be paid in a lump sum to Executive on the earliest of (x) Executive’s death following the date of Executive’s separation of service date or (y) the first payroll date that occurs after the date that is six (6) months following the date of Executive’s separation of service with the Company. For these purposes, each Deferred Compensation Separation Benefits is designated as a separate payment or benefit and will not collectively be treated as a single payment or benefit. This paragraph is intended to comply with the requirements of Section 409A of the Code so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A(a)(1) of the Code and any ambiguities herein will be interpreted to so comply. In furtherance of this interest, to the extent that any regulations or other guidance issued under Code Section 409A after the Effective Date would result in the Executive being subject to payment of interest or tax penalties under Code Section 409A, the parties agree to amend this Agreement if such ame...

Code Section 409A Matters. This Agreement is intended to comply with Code Section 409A and any ambiguous provisions will be construed in a manner that is compliant with or exempt from the application of Code Section 409A. If a provision of the Agreement would result in the imposition of an applicable tax under Code Section 409A, the parties agree that such provision shall be reformed to avoid imposition of the applicable tax, with such reformation effected in a manner that has the most favorable result to Executive. For purposes of Code Section 409A, each payment or amount due under this Agreement shall be considered a separate payment, and Executive’s entitlement to a series of payments under this Agreement is to be treated as an entitlement to a series of separate payments. If (x) Executive is a “specified employee,” as such term is defined in Code Section 409A and determined as described below in this Paragraph 7(i), and (y) any payment due under this Agreement is subject to Code Section 409A and is required to be delayed under Code Section 409A because Executive is a specified employee, that payment shall be payable on the earlier of (A) the first business day that is six months after Executive’s separation from service, as such term is defined in Code Section 409A, (B) the date of Executive’s death, or (C) the date that otherwise complies with the requirements of Section 409A. This Paragraph 7(i) shall be applied by accumulating all payments that otherwise would have been paid within six months of Executive’s separation and paying such accumulated amounts on the earliest business day which complies with the requirements of Code Section 409A. For purposes of determining the identity of specified employees, the Board may establish procedures as it deems appropriate in accordance with Code Section 409A.

Code Section 409A Matters. The Company has attempted in good faith to structure the Stock Units in a manner that conforms to the requirements of Code Section 409A(a)(2), (3) and (4), and any ambiguities herein will be interpreted to so comply with these requirements to the maximum extent permissible. To the extent the IRS challenges whether the Stock Units in fact comply with Code Section 409A(a)(2), (3) and (4), the Recipient shall be fully responsible for any additional taxes, penalties and/or interest that might apply as a result of any adverse determination resulting from such challenge. To the extent the Stock Units contemplate multiple distribution dates, each amount to be paid (Shares to be distributed) hereunder on any particular distribution date is designated as a separate payment and such payments will not collectively be treated as a single payment. Notwithstanding anything else to the contrary in this Agreement or the Plan, the Company may accelerate distribution of Shares under this Agreement only in accordance with Treas. Reg. §1.409A-3(j)(4).

Code Section 409A Matters. Code Section 409A shall only apply to that portion of the Officer’s benefit that was not earned and vested prior to January 1, 2005. The parties intend that the increased accruals that result from the change in the Normal Retirement Age to age 62 as of January 1, 2006 shall not be treated as a material modification so as to affect the pre-January 1, 2005 accruals and that such increased accruals shall be subject to Code Section 409A.” 4. This First Amendment shall be effective as of January 1, 2006.

Code Section 409A Matters. This Agreement is intended to comply with Code Section 409A and applicable guidance thereunder, including but not limited to Notice 2007-86 and Notice 2007-78, and the provisions of this Agreement shall be construed in accordance with that intention so as to avoid any adverse tax consequence to the Officer. Any provision required for compliance with Code Section 409A that is omitted from this Agreement shall be incorporated herein by reference and shall apply retroactively, if necessary, and be deemed a part of this Agreement to the same extent as though expressly set forth herein. In the event that the Officer become liable for interest or additional tax under Code Section 409A, the Company shall pay to the Officer an additional amount (the “409A Gross-Up Payment”) equal to the additional tax and interest plus any related federal, state and local income, excise, and employment taxes. The intent of the 409A Gross-Up Payment is to ensure that the Officer does not bear the cost of the imposition of such additional tax and interest under Code Section 409A. Payment of a 409A Gross-Up Payment must be claimed by the Officer so as to permit payment, and such payment shall be made, by the end of the Officer’s taxable year next following the Officer’s taxable year in which the Officer remits the related tax; however, the payment shall be subject to the six month delay rule as provided in Section 2.6. Notwithstanding anything contained herein to the contrary, no payment hereunder shall be made prior to January 15, 2008 if such payment would violate the transition rules regarding the time and form of payment as set forth in Notice 2007-86.

Code Section 409A Matters. It is the parties intent that any amounts payable under this Agreement and the Employer’s and Employee’s exercise of authority or discretion hereunder shall be exempt from or comply with Section 409A of the Code (including the Treasury regulations and other published guidance relating thereto) so as not to subject Employee to the payment of any interest or additional tax imposed under Section 409A of the Code. In furtherance of this intent, (a) if the date of payment or the commencement of any installment payments must be delayed for six months in order to meet the requirements of Section 409A(a)(2)(B) of the Code applicable to “specified employees,” then such payment or payments shall be so delayed and paid upon the expiration of such six month period and (b) each payment which is conditioned upon the Employee’s execution of a release and which is to be paid during a designated period that begins in a first taxable year and ends in a second taxable year shall be paid in the second taxable year. With regard to any provision herein that provides for reimbursement of expenses, or in-kind benefits, such reimbursements or in-kind benefits shall be paid in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). If any Treasury regulations, guidance or changes to Section 409A would result in the Employee becoming subject to interest and additional tax under Section 409A of the Code, the Employer and Employee agree to amend this Agreement to bring this Agreement into compliance with Code Section 409A.

Code Section 409A Matters. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended, and applicable guidance thereunder, including but not limited to Notice 2007-86 and Notice 2007-78, and the provisions of this Agreement shall be construed in accordance with that intention so as to avoid any adverse tax consequence to the Officer. Any provision required for compliance with Code Section 409A that is omitted from this Agreement shall be incorporated herein by reference and shall apply retroactively, if necessary, and be deemed a part of this Agreement to the same extent as though expressly set forth herein. Notwithstanding anything contained herein to the contrary, no payment hereunder shall be made prior to January 15, 2008 if such payment would violate the transition rules regarding the time and form of payment as set forth in Notice 2007-86.” 12. Section 14 and Exhibit “A” of the Agreement are hereby deleted. 13. This Amendment shall be effective as of the date of execution.

Code Section 409A Matters. This Restricted Stock Unit award is a nonqualified deferred compensation arrangement subject to Code Section 409A. The Company has attempted in good faith to structure this Restricted Stock Unit award (including any deferral elections made in connection with such award) in a manner that conforms to the requirements of Code Section 409A(a)(2), (3) and (4) and any ambiguities herein will be interpreted to so conform with these requirements to the maximum extent permissible. To the extent the IRS challenges whether this award in fact conforms with Code Section 409A(a)(2), (3) and (4), the Director shall be fully responsible for any additional taxes, penalties and/or interest that might apply as a result of any adverse determination resulting from such challenge. To the extent this award contemplates multiple Distribution Dates (including as a result of a deferral election), each amount to be paid (Shares to be distributed) hereunder on any particular Distribution Date is designated as a separate payment and such payments will not collectively be treated as a single payment. Any subsequent deferral election shall comply with the subsequent deferral election rules of Section 409A(a)(4)(C) (which, as relevant to this award, are set forth on the election form attached hereto as Exhibit A). Notwithstanding anything else to the contrary in this Agreement or in the Plan, the Company may accelerate distribution of Shares under this Agreement only in accordance with Treas. Reg. §1.409A-3(j)(4). Notwithstanding anything to the contrary contained in the Plan or this Agreement, any acceleration of the Distribution Date that occurs pursuant to Section 5 above and/or Section 14(c) of the Plan shall only occur on a Change in Control (as defined in the Plan) that qualifies as a “change in ownership or effective control,” or a “change in ownership of a substantial portion of the assets,” of the Company, all as defined under Code Section 409A. In addition, for all purposes under this Agreement and to the extent permitted under Code Section 409A, the Director shall have a “separation from service” as defined under Code Section 409A upon the Termination Date. In addition, and notwithstanding any provision of this Agreement including Section 4 above to the contrary, if at the time of the Director’s Termination Date he or she is a “specified employee” (as defined in Code Section 409A), and if and only if the deferral of payment (distribution of Shares) as a result of the Director’...