Section 409A Restrictions Clause Samples

Section 409A Restrictions. This Agreement shall be interpreted in such a manner that the payments to Executive are either exempt from, or comply with, Section 409A of the Internal Revenue Code, including any regulations or other guidance that may be issued after the date hereof. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. Notwithstanding anything to the contrary in this Agreement, if Executive is a “specified employee” as defined below, as of the Retirement Date, then, to the extent any payment under this Agreement resulting from Executive’s retirement from the Company constitutes deferred compensation (after taking into account any applicable exemptions from Section 409A) and to the extent required by Section 409A, no payments due under this Agreement as a result of Executive’s retirement may be made until the earlier of (a) the first day following the six-month period that follows the Retirement Date or, if later, six months following the date that Executive incurs a separation from service defined in Treas. Reg. §1.409A-1(h), and (b) Executive’s date of death; provided, however, that any payments delayed during this six-month period shall be paid in the aggregate in a lump sum as soon as reasonably practicable after the expiration thereof. For purposes of this Agreement, the term “specified employee” means an individual determined by the Company to be a specified employee under Treas. Reg. §1.409A-1(i).

Section 409A Restrictions. (a) If and only to the extent necessary to satisfy the requirements of Section 409A of the Code , the payments, compensation and benefits provided to Executive by this Agreement shall be subject to the restrictions of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall be interpreted to avoid any penalty sanctions under Section 409A of the Code. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under Section 409A of the Code, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of Section 409A of the Code, all payments to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” within the meaning of such term under Section 409A of the Code, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment. (b) In the event of the termination of the Agreement by reason of Executive being totally disabled, as provided in Section 5(c) above, Executive shall be entitled to the benefits under Section 6(b) above at such time and in such amounts as provided by Section 6(b); provided, however, that: (i) any bonus amounts shall be paid to Executive in accordance with Section 6(b), but not later than two and one-half (2-1/2) months after the end of the calendar year in which Executive becomes totally disabled; provided, that if any stock of the Company is publicly-traded on an established securities market or otherwise as of the date of Executive’s termination of employment and it is necessary to comply with section 409A of the Code, payments shall commence not earlier than six months following Executive’s termination of employment. (ii) reimbursement for expenses which would be excludable from Executive’s income or which would be deductible business expenses under Section 162 of the Code (without regard to adjusted gross income limitations) and payment of indemnification obligations which would be excludable from Executive’s income shall be promptly made to Executive in accordance with Section 6(b), but not later than the end of the second calendar year following the date of...

Section 409A Restrictions. Notwithstanding anything to the contrary in this Agreement or otherwise, if Executive is a “specified employee” (as defined under section 409A of the Internal Revenue Code) on the Retirement Date, any payments of “deferred compensation” (as defined under section 409A of the Internal Revenue Code) that Executive would otherwise be entitled to receive in connection with his retirement from the Company during the six month period following the Retirement Date, whether paid under this Agreement or otherwise, will instead be accumulated and paid in a lump sum on the earlier of (i) the first day of the seventh month after the Retirement Date, or (ii) the date of Executive’s death. This paragraph shall apply only to the extent required to avoid Executive’s incurrence of any additional tax or interest under section 409A of the Internal Revenue Code.

Section 409A Restrictions. The Executive (or the Executive’s beneficiary in the case of the Executive’s death) shall not be entitled to commence benefits hereunder prior to the first to occur of the following events: (1) the Executive’s “Separation From Service” (as determined in accordance with any regulations, rulings or other guidance issued by the Department of the Treasury or the Internal Revenue Service pursuant to Section 409A(a)(2)(A)(i) of the Code), or if the Executive is a “Key Executive” (as defined in Section 416(i) of the Code without regard to Section 416(i)(5)) the date which is six months after the Executive’s Separation From Service; (2) the Executive becoming “Disabled” (as defined and determined in accordance with Section 409A(a)(2)(C) of the Code); (3) the Executive’s death; (4) an Unforeseeable Emergency (as defined and determined in accordance with Section 409A(a)(2)(B)(ii)(I) of the Code); or (5) to the extent provided by the Secretary of the Treasury, a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company. This Section 2.4(a) restates the restrictions on distributions set forth in Section 409A of the Code and is intended to impose restrictions on distributions pursuant to this Agreement accordingly. This Section 2.4(a) does not describe the instances in which distributions actually will be made. Rather, distributions will be made only if and when permitted by both this Section 2.4(a) and another provision of Article II of this Agreement.

Section 409A Restrictions. If and only to the extent necessary to satisfy the requirements of Section 409A of the Internal Revenue Code of 1986 as amended (the “Code”) and the regulations and other guidance promulgated thereunder by the Internal Revenue Service (hereafter referred to as “Section 409A”), the payments, compensation and benefits provided to the Executive by this Section 5 shall be subject to the restrictions of Section 409A. If any stock of the Company is publicly traded on an established securities market or otherwise as of the date of Executive’s termination of employment and Executive is a “key employee,” as defined in Section 416(i) of the Code (without regard to paragraph (5) thereof), the Executive shall receive such payments, compensation and benefits in accordance with Section 5(a), above, except as provided below or as otherwise permitted by Section 409A: (i) Payments of annual base salary and annual cash bonus amounts shall commence not earlier than the date that is six months following the Executive’s termination of employment. If the Executive would have otherwise received any salary and/or bonus payments during the first six months after termination of employment but for this Section 5(g), such payments shall be made in a single sum to the Executive on the first business day following the date that is six months after her termination of employment. In addition, the Company shall pay the Executive interest on payments that are delayed because of this Section 5(g) at the ▇▇▇▇▇’▇ ▇▇ rate for corporate bonds as of the last business day preceding the beginning of the calendar year in which such payments would have otherwise been paid to the Executive pursuant to Section 5(a), above. (ii) If the Company determines to provide life insurance coverage to the Executive in accordance with Section 5(a), above, that would otherwise be includible in the Executive’s income, the Executive must timely pay to the Company all premiums for such coverage that are due prior to six months following Executive’s termination of employment. The Company will pay all premiums that are due for such life insurance coverage in accordance with Section 5(a) starting six months after the Executive’s termination of employment and will reimburse the Executive for the premiums that the Executive has paid on the first business day following the date that is six months after the Executive’s termination of employment. If, pursuant to Section 5(a), the Company decides to pay cash to the Executive ...