409A Language In Employment Agreements

The difficulty of the 409A is the overly broad definition of what constitutes an unqualified wage conversion plan. The 409A Treasury Regulations define an unqualified compensation plan as any plan, agreement, program or agreement that offers a “contractor” (including employees and self-employed contractors) a “legally binding right” to pay compensation to be paid in a subsequent fiscal year. This broad definition includes bonuses, capital remuneration, redundancy agreements and other forms of remuneration and benefits to be paid to executives under a remuneration contract or employment contract. Some employment contracts provide for or expedite the payment of a death benefit bonus or other payments in the event of death. Under Section 409A, death is an authorized payment event. .

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