Common use of IRS Code Section 409A Clause in Contracts

IRS Code Section 409A. It is intended that the Retention Bonus (or, if applicable, the Termination Bonus) payable under this Retention Agreement satisfy, to the greatest extent possible, the exemption from the application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) provided under Treasury Regulations Section 1.409A-1(b)(4) and in all cases will be paid not later than March 15 of the year following the year in which your right to such amount became vested. To the extent that the Retention Bonus or the Termination Bonus is deferred compensation under Section 409A of the Code, and is not otherwise exempt from the application of Section 409A, then, if the period during which you may consider and sign the Release spans two (2) calendar years, the payment of such bonus will not be made until the later calendar year. Additionally, the terms of Section 12 of the Severance Agreement shall apply for purposes of this Agreement. Notwithstanding any contrary provision herein, if the Retention Bonus or Termination Bonus is considered “deferred compensation” under Section 409A of the Code, and if you are a “specified employee” for purposes of Section 409A of the Code, no distribution or payment of any amount that is due because of a “separation from service” (as defined in Section 409A of the Code without regard to alternative definitions thereunder) will be issued or paid before the date that is six months following the date of such “separation from service” or, if earlier, the date of the your death, unless such distribution or payment can be made in a manner that complies with Section 409A of the Code, and any amounts so deferred will be paid in a lump sum on the day after such six month period elapses.

IRS Code Section 409A. It is intended that all of the Retention Bonus (or, if applicable, the Termination Bonus) severance benefits and other payments payable under this Retention Agreement satisfy, to the greatest extent possible, the exemption exemptions from the application of Section 409A of the Internal Revenue Code of 1986Code, as amended (the “Code”) provided under Treasury Regulations Section 1.409A-1(b)(4), 1.409A-1(b)(5) and in all cases 1.409A-1 (b)(9), and this Agreement will be paid construed to the greatest extent possible as consistent with those provisions, and to the extent not later than March 15 so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A- 2(b)(2)(iii)), the year following the year in which your Executive’s right to such amount became vestedreceive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. To Notwithstanding anything herein to the contrary, to the extent that any payments to the Retention Bonus Executive pursuant to this Agreement (including the Severance Benefits or the Termination Bonus is Change in Control Severance Benefits) constitute “non-qualified deferred compensation under compensation” subject to Section 409A of the Code, and is not otherwise exempt from the application of Section 409A, then, if to the period during which you may consider and sign the Release spans two (2) calendar years, the payment of such bonus will not be made until the later calendar year. Additionally, the terms of Section 12 of the Severance Agreement shall apply for purposes of this Agreement. Notwithstanding any contrary provision herein, if the Retention Bonus or Termination Bonus is considered “deferred compensation” under extent required by Section 409A of the CodeCode (including, and without limitation, to secure an exemption from or to comply with Section 409A), no amount shall be payable pursuant to such sections unless the Executive’s termination of employment constitutes a “separation from service” with the Corporation (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a “Separation from Service”). Notwithstanding any provision to the contrary in this Agreement, if you are the Executive is deemed by the Corporation at the time of the Executive’s Separation from Service to be a “specified employee” for purposes of Code Section 409A 409A(a)(2)(B)(i), and if any of the Codepayments upon Separation from Service set forth herein and/or under any other agreement with the Corporation are deemed to be “deferred compensation”, no distribution or payment then to the extent delayed commencement of any amount that portion of such payments is due because required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to the Executive prior to the earliest of a “separation from service” (as defined in Section 409A a) the expiration of the Code without regard to alternative definitions thereunder) will be issued or paid before the date that is six months following the date of such “separation six-month and one day period measured from service” or, if earlier, the date of the your Executive’s Separation from Service with the Corporation, (b) the date of the Executive’s death, unless or (c) such distribution or payment can be made in a manner that complies with earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the Codefirst business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, and any amounts so all payments deferred will pursuant to this Paragraph 8 shall be paid in a lump sum to the Executive, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred. If any severance benefits provided under this Agreement constitute “non-qualified deferred compensation” under Section 409A, any such severance benefits shall not be paid, or in the case of installments shall not commence payment, until the sixtieth (60th) day after following the Executive’s Separation from Service (the “Initial Payment Date”), regardless of when the Release actually becomes effective (and any payments scheduled to be made prior to such six month period elapsesInitial Payment Date shall instead accrue and be paid in a single lump sum on such Initial Payment Date) and the remaining payments shall be made as provided in this Agreement.