Section 409A Savings Clause. (a) It is the intention of the parties that compensation or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code and this Agreement shall be interpreted accordingly. To the extent such potential payments or benefits could become subject to additional tax under such Section, the parties shall cooperate to amend this Agreement with the goal of giving Executive the economic benefits described herein in a manner that does not result in such tax being imposed.
(b) Each payment or benefit made pursuant to Section 5 of this Agreement shall be deemed to be a separate payment for purposes of Code Section 409A and each payment made in installments shall be treated as a series of separate payments for purposes of Code Section 409A, to the extent permitted under applicable law. In addition, payments or benefits pursuant to Section 5 shall be exempt from the requirements of Code Section 409A to the maximum extent possible as “short-term deferrals” pursuant to Treasury Regulation Section 1.409A-1(b)(4), as involuntary separation pay pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii), as exempt reimbursements under Treasury Regulation Section 1.409A-1(b)(9)(v), and/or under any other exemption that may be applicable, and this Agreement shall be construed accordingly.
(c) For purposes of this Agreement, phrases such as “termination of employment,” when used to describe when cash severance payments may be made, shall be deemed to mean “separation from service,” as defined in Section 409A of the Code and the Treasury Regulations thereunder. For clarity, if Executive ceases to be an employmee but does not incur a “separation from service” under Code Section 409A, the Company shall calculate the amount of cash severance pay under Section 5 based on the date of Executive’s state law employment termination, but such cash severance pay will only be paid at such time as Executive incurs a “separation from service” under Section 409A of the Code and the Treasury Regulations thereunder.
(d) If Executive is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of the Code and would receive any payment sooner than 6 months after Executive’s “separation from service” that, absent the application of this Section 19(d), would be subject to additional tax imposed pursuant to Section 409A of the Code as a result of such status as a specified employee, then such payment shall instead be payable on the...
Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of the Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in order to comply with the provisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and without any diminution in the value of the payments to the Executive. Amounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any event, within 2 1/2 months after the end of the year in which such amount was earned. Any amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year. If at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable by the Company to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six-month period together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of the dates the payments should otherwise have been provided.
Section 409A Savings Clause. The Company and the Executive agree that they will negotiate in good faith and jointly execute an amendment to modify this Agreement to the extent necessary to comply with the requirements of Internal Revenue Code Section 409A, or any successor statute, regulation and guidance thereto; provided that no such amendment shall increase the total financial obligation of the Company under this Agreement.
Section 409A Savings Clause. It is the intention of the parties that compensation or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving Executive the economic benefits described herein in a manner that does not result in such tax being imposed.
Section 409A Savings Clause. Despite any contrary provision of this Agreement, if when the Employee's employment terminates, the Employee is a "specified employee," as defined in section 409A of the Internal Revenue Code, and if any payments or benefits under this Agreement will result in additional tax or interest to the Employee because of section 409A, the Employee shall not be entitled to such payments or benefits until the earliest of (x) the date that is at least six months after termination of the Employee's employment for reasons other than the Employee's death, (y) the date of the Employee's death, or (z) any earlier date that does not result in additional tax or interest to the Employee under section 409A. As promptly as possible after the end of the period during which payments or benefits are delayed under this provision, the entire amount of delayed payments shall be paid to Employee in a single lump sum. References in this Agreement to section 409A of the Internal Revenue Code of 1986 include rules, regulations and guidance of general application issued by the Department of the Treasury under such section 409A.
Section 409A Savings Clause. (a) It is the intention of the parties that compensation or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving Employee the economic benefits described herein in a manner that does not result in such tax being imposed.
(b) Notwithstanding anything in this Agreement to the contrary, if on the date of termination of Employee’s employment with the Company,
(i) Employee would not have a separation from service within the meaning of Section 409A of the Code and the Treasury Regulations thereunder (“Separation From Service”), and as a result of such termination of employment would receive any payment that, absent the application of this Section 10(b)(i), would be subject to additional tax imposed pursuant to Section 409A of the Code, then such payment shall instead be payable on the date that is the earliest of (A) Employee’s Separation From Service, (B) the date Employee becomes disabled (within the meaning of Section 409A(a)(2)(C) of the Code), (C) Employee’s death, or (D) such other date as will not result in such payment being subject to such additional tax; and if
(ii) Employee is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of the Code and would receive any payment sooner than six months after Employee’s separation from service that, absent the application of this Section 10(b)(ii), would be subject to additional tax imposed pursuant to Section 409A of the Code as a result of such status as a specified employee, then such payment shall instead be payable on the date that is the earliest of (A) six months after Employee’s Separation From Service, (B) Employee’s death, or (C) such other date as will not result in such payment being subject to such additional tax.
Section 409A Savings Clause. It is the intention of the Parties that all compensation or benefits payable under this Agreement be exempt from Section 409A of the Internal Revenue Code (“Section 409A”) or comply with Section 409A so that no additional tax under Section 409A is imposed. To the extent such compensation or benefits could be or are found not to be exempt from Section 409A or would have additional tax under Section 409A imposed, the Parties shall cooperate to amend this Agreement to avoid such result, with the goal of giving Employee the economic benefits described herein in a manner that does not result in additional tax or interest being imposed, but without requiring the Company to pay any additional amounts.
Section 409A Savings Clause. It is the intention of the Employer and the Employee that payments or benefits payable under this Article VIII not be subject to the additional tax imposed pursuant to Section 409A of the Code, and the provisions of this Article VIII shall be construed and administered in accordance with such intent. To the extent such potential payments could become subject to Code Section 409A, the Employer shall be entitled to amend this Article VIII with the goal of giving the Employee the economic benefits described herein in a manner that does not result in such tax being imposed.
Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of the Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in order to comply with the provisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and without any diminution in the value of the payments to the Executive. Notwithstanding any provision of this Agreement to the contrary, to the extent required in order to comply with Section 409A of the Code, amounts to be paid under this Agreement upon the Executive’s termination of employment shall be paid, with interest on any payment from the termination date until the first business day after the date that is six months following the termination date at the applicable federal rate provided in Section 7872(f)(2)(A) of the Code, to the Executive on the first business day after the date that is six months following the termination date.
Section 409A Savings Clause. This Agreement and all provisions hereof are intended to comply with Section 409A of the Code and the permanent, temporary or proposed regulations issued thereunder. If any provision of this Agreement violates or fails to comply with the Section 409A of the Code or the permanent, temporary or proposed regulations thereunder, then such provision shall be modified, as of the effective date of this Agreement, to the least extent necessary to comply therewith. This Section supersedes all other provisions of this Agreement to the extent of any inconsistency.
