Common use of Code Section 409A Restrictions Clause in Contracts

Code Section 409A Restrictions. (A) Each payment under this Agreement that constitutes “nonqualified deferred compensation” within the meaning of Section 409A of the Code, the regulations and other binding guidance promulgated thereunder (“Section 409A”), including each payment in a series of installment payments, is intended to be a separate payment for purposes of Treas. Reg. § 1.409A-2(b), and is intended to be: (i) exempt from Section 409A, including, but not limited to, by compliance with the short-term deferral exemption as specified in Treas. Reg. § 1.409A-l(b)(4) and the involuntary separation pay exception within the meaning of Treas. Reg. § 1.409A-1(b)(9)(iii), or (ii) in compliance with Section 409A, including, but not limited to, being paid pursuant to a fixed schedule or specified date pursuant to Treas. Reg. § l.409A-3(a), and the provisions of this Agreement will be administered, interpreted and construed accordingly. Notwithstanding the foregoing, the Company makes no representations that the payments or benefits provided under this Agreement are exempt from the requirements of Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive on account of non-compliance with Section 409A. (B) Notwithstanding anything in this Agreement to the contrary, if payment of any amounts under this Agreement would be subject to additional taxes and interest under Section 409A because the timing of such payments is not delayed as provided in Section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, then any such payments that Executive would otherwise be entitled to during the first six months following the date of the Executive’s termination of employment with the Company shall be accumulated and paid on the first business day that is six months after the date of the Executive’s termination of employment with the Company, or such earlier date upon which such payments can be paid under Section 409A without being subject to such additional taxes and interest. If this Section becomes applicable such that any payments are delayed, any payments that are so delayed shall accrue interest on a non-compounded basis, from the date they would otherwise have been made absent such delay to the actual date of payment, at the prime or base rate of interest announced by ▇▇▇▇▇ Fargo Bank (or any successor thereto) at its principal office in Houston, Texas on the date of such termination, which shall be paid in a lump sum on the actual date of payment of the delayed payments. (C) Executive hereby agrees to be bound by the Company’s determination of its “specified employees” (as such term is defined in Section 409A) in accordance with any of the methods permitted under the regulations issued under Section 409A. (D) Any reimbursements under this Agreement are intended to comply with Section 409A or an exemption from the application of Section 409A, and all provisions of this Agreement will be administered, interpreted and construed accordingly. Reimbursements will be made as soon as practicable following the date on which Executive submits all required substantiating documentation, but in any event no later than December 31 of the calendar year following the calendar year in which the expense is incurred. The amount of reimbursements provided under this Agreement in any calendar year will not affect the amount of reimbursements provided during any other calendar year and the right to reimbursements hereunder cannot be liquidated or exchanged for any other benefit.

Code Section 409A Restrictions. (A) Each payment under this Agreement that constitutes “nonqualified deferred compensation” within the meaning of Section 409A of the Code, the regulations and other binding guidance promulgated thereunder (“Section 409A”), including each payment in a series of installment payments, is intended to be a separate payment for purposes of Treas. Reg. § 1.409A-2(b), and is intended to be: (i) exempt from Section 409A, including, but not limited to, by compliance with the short-term deferral exemption as specified in Treas. Reg. § 1.409A-l(b)(4) and the involuntary separation pay exception within the meaning of Treas. Reg. § 1.409A-1(b)(9)(iii1.409A- 1(b)(9)(iii), or (ii) in compliance with Section 409A, including, but not limited to, being paid pursuant to a fixed schedule or specified date pursuant to Treas. Reg. § l.409A-3(a), and the provisions of this Agreement will be administered, interpreted and construed accordingly. Notwithstanding the foregoing, the Company makes no representations that the payments or benefits provided under this Agreement are exempt from the requirements of Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive on account of non-compliance with Section 409A.. (B) Notwithstanding anything in this Agreement to the contrary, if payment of any amounts under this Agreement would be subject to additional taxes and interest under Section 409A because the timing of such payments is not delayed as provided in Section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, then any such payments that Executive would otherwise be entitled to during the first six months following the date of the Executive’s termination of employment with the Company shall be accumulated and paid on the first business day that is six months after the date of the Executive’s termination of employment with the Company, or such earlier date upon which such payments can be paid under Section 409A without being subject to such additional taxes and interest. If this Section becomes applicable such that any payments are delayed, any payments that are so delayed shall accrue interest on a non-compounded basis, from the date they would otherwise have been made absent such delay to the actual date of payment, at the prime or base rate of interest announced by ▇▇▇▇▇ Fargo Bank (or any successor thereto) at its principal office in Houston, Texas on the date of such termination, which shall be paid in a lump sum on the actual date of payment of the delayed payments. (C) Notwithstanding anything in this Agreement to the contrary, if benefits to be made available under this Agreement would be subject to additional taxes and interest under Section 409A because the provision of such benefits is not delayed for the first six months following the date of the Executive’s termination of employment with the Company as provided in Section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, such benefits shall not be delayed; however, the Executive shall pay to the Company, at the time or times such benefits are provided, the fair market value of such benefits, and the Company shall reimburse the Executive for any such payments on the fifth business day following the expiration of such six-month period. (D) Executive hereby agrees to be bound by the Company’s determination of its “specified employees” (as such term is defined in Section 409A) in accordance with any of the methods permitted under the regulations issued under Section 409A. (DE) Any reimbursements Reimbursements under this Agreement are intended to comply with Section 409A or an exemption from the application of Section 409A, and all provisions of this Agreement will be administered, interpreted and construed accordingly. Reimbursements will be made as soon as practicable following the date on which Executive submits all required substantiating documentation, but in any event no later than December 31 of the calendar year following the calendar year in which the expense is incurred. The amount of reimbursements provided under this Agreement in any calendar year will not affect the amount of reimbursements 8 provided during any other calendar year and the right to reimbursements hereunder cannot be liquidated or exchanged for any other benefit.

Code Section 409A Restrictions. (A) Each To the extent Section 409A of the Code is applicable to Executive, each payment under this Agreement that constitutes “nonqualified deferred compensation” within the meaning of Section 409A of the Code, the regulations and other binding guidance promulgated thereunder (“Section 409A”), including each payment in a series of installment payments, is intended to be a separate payment for purposes of Treas. Reg. § 1.409A-2(b), and is intended to be: (i) exempt from Section 409A, including, but not limited to, by compliance with the short-term deferral exemption as specified in Treas. Reg. § 1.409A-l(b)(4) and the involuntary separation pay exception within the meaning of Treas. Reg. § 1.409A-1(b)(9)(iii), or (ii) in compliance with Section 409A, including, but not limited to, being paid pursuant to a fixed schedule or specified date pursuant to Treas. Reg. § l.409A-3(a), and the provisions of this Agreement will be administered, interpreted and construed accordingly. Notwithstanding the foregoing, the Company Employer makes no representations that the payments or benefits provided under this Agreement are exempt from the requirements of Section 409A and in no event shall the Company Employer be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive on account of non-compliance with Section 409A. (B) Notwithstanding anything in this Agreement to the contrary, if payment of any amounts under this Agreement would be subject to additional taxes and interest under Section 409A because the timing of such payments is not delayed as provided in Section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, then any such payments that Executive would otherwise be entitled to during the first six months following the date of the Executive’s termination of employment with the Company Employer shall be accumulated and paid on the first business day that is six months after the date of the Executive’s termination of employment with the CompanyEmployer, or such earlier date upon which such payments can be paid under Section 409A without being subject to such additional taxes and interest. If this Section becomes applicable such that any payments are delayed, any payments that are so delayed shall accrue interest on a non-compounded basis, from the date they would otherwise have been made absent such delay to the actual date of payment, at the prime or base rate of interest announced by ▇▇▇▇▇ Fargo Bank (or any successor thereto) at its principal office in Houston, Texas on the date of such termination, which shall be paid in a lump sum on the actual date of payment of the delayed payments. (C) To the extent Section 409A of the Code is applicable to Executive, Executive hereby agrees to be bound by the CompanyEmployer’s determination of its “specified employees” (as such term is defined in Section 409A) in accordance with any of the methods permitted under the regulations issued under Section 409A. (D) Any To the extent Section 409A of the Code is applicable to Executive, any reimbursements under this Agreement are intended to comply with Section 409A or an exemption from the application of Section 409A, and all provisions of this Agreement will be administered, interpreted and construed accordingly. Reimbursements will be made as soon as practicable following the date on which Executive submits all required substantiating documentation, but in any event no later than December 31 of the calendar year following the calendar year in which the expense is incurred. The amount of reimbursements provided under this Agreement in any calendar year will not affect the amount of reimbursements provided during any other calendar year and the right to reimbursements hereunder cannot be liquidated or exchanged for any other benefit.