Section 409A and 280G. a. The parties intend this Offer Letter and the payments required hereunder to be either in compliance with or exempt from Section 409A of the Code. It is intended that each installment of the payments and benefits provided under this Offer Letter will be treated as a separate “payment” for purposes of Section 409A of the Code. Neither the Company nor you will have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A of the Code. b. Notwithstanding any other provision of this Offer Letter to the contrary, if any amount to be paid to you pursuant to this Offer Letter as a result of your termination of employment is “deferred compensation” subject to Section 409A of the Code, then: (i) if you are a “Specified Employee” (as defined under Section 409A of the Code) as of the date of your termination of employment, then, to the extent necessary to avoid the imposition of excise taxes or other penalties under Section 409A of the Code, the payment of benefits, if any, scheduled to be paid by the Company to you hereunder during the first 6-month period following the date of a termination of employment hereunder will not be paid until the date which is the first business day after 6 months have elapsed since your termination of employment for any reason other than death; any deferred compensation payments delayed in accordance with the terms of this section will be paid in a lump sum after 6-months have elapsed since your termination of employment; any other payments will be made according to the schedule provided for herein; and (ii) any termination of employment triggering payment of such benefits must constitute a “separation from service” under Section 409A of the Code before distribution of such benefits can commence; to the extent that the termination of your employment does not constitute a “separation from service” under Section 409A of the Code (as the result of further services that are reasonably anticipated to be provided by you to the Company at the time your employment terminates), any benefits payable under this Offer Letter that constitute “deferred compensation” under Section 409A of the Code will be delayed until after the date of a subsequent event constituting a “separation from service” under Section 409A of the Code. For purposes of clarification, this section will not cause any forfeiture of benefits on your part, but will only act as a delay until such time as a “separation from service” occurs. c. If any payment or benefit you would receive from the Company, when combined with any other payment or benefit you receive or are entitled to receive from the Company (for purposes of this section, a “Payment”) would: (i) constitute a “parachute payment” within the meaning of Section 280G the Code; and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be either: (A) the full amount of such Payment; or (B) such lesser amount (with cash payments being reduced before stock option compensation) as would result in no portion of the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employments taxes, income taxes, and the Excise Tax, results in your receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax.
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Section 409A and 280G. a. The parties intend a) Anything in this Offer Letter and Agreement to the payments required hereunder to be either in compliance with or exempt from Section 409A contrary notwithstanding, if at the time of the Code. It is intended that each installment Executive’s separation from service within the meaning of the payments and benefits provided under this Offer Letter will be treated as a separate “payment” for purposes of Section 409A of the Code. Neither the Company nor you will have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A of the Code.
b. Notwithstanding any other provision of this Offer Letter to the contrary, if any amount to be paid to you pursuant to this Offer Letter as a result of your termination of employment is “deferred compensation” subject to Section 409A of the Code, then: (i) if you are a “Specified Employee” (as defined under Section 409A of the Code) as of the date of your termination of employment, then, to the extent necessary to avoid the imposition of excise taxes or other penalties under Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a) (2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of benefitsthe Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(8)(1) of the Code, if anysuch payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, scheduled to or (B) the Executive’s death.
b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be paid provided by the Company to you hereunder or incurred by the Executive during the first 6-month period time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the date taxable year in which the expense was incurred. The amount of a termination of employment hereunder will in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be paid until provided or the date which is the first business day after 6 months have elapsed since your termination of employment expenses eligible for any reason other than death; any deferred compensation payments delayed reimbursement in accordance with the terms of this section will be paid in a lump sum after 6-months have elapsed since your termination of employment; any other payments will be made according taxable year. Such right to the schedule provided reimbursement or in kind benefits is not subject to liquidation or exchange for herein; and (iianother benefit.
c) any termination of employment triggering payment of such benefits must constitute a “separation from service” under Section 409A of the Code before distribution of such benefits can commence; to To the extent that the termination of your employment does not constitute a any payment or benefit described in this Agreement constitutes “separation from service” under Section 409A of the Code (as the result of further services that are reasonably anticipated to be provided by you to the Company at the time your employment terminates), any benefits payable under this Offer Letter that constitute “non qualified deferred compensation” under Section 409A of the Code will Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be delayed until after payable only upon the date of a subsequent event constituting a Executive’s “separation from service.” under The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A- I (h).
d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. For purposes To the extent that any provision of clarificationthis Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this section will not cause any forfeiture Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and regulations and guidance promulgated thereunder in order to preserve the payments and benefits on your part, but will only act as a delay until such time as a “separation from service” occursprovided hereunder to the maximum extent practicable without additional cost to either party.
c. e) If any payment or benefit you Executive would receive from the Company, when combined under this Agreement together with any other payment or benefit you receive or are entitled payments and benefits which the Executive has the right to receive from the Company (for purposes of this section, a the “PaymentPayments”) would: (i) constitute a “parachute payment” within the meaning of Section 280G the Code; and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment Payments shall be reduced (but not below zero) so that the aggregate present value of the Payments will be either: one dollar (A$1.00) less than three times the full amount Executive’s “base amount” (as defined in Section 280G of such Payment; or (Bthe Code) such lesser amount (with cash payments being reduced before stock option compensation) as would result in and so that no portion of the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employments taxes, income taxes, and the Excise Tax, results in your receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may Payments shall be subject to the Excise Tax.
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