American Jobs Creation Act Provisions. It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). Accordingly, to the extent such potential payments or benefits could become subject to Section 409A of the Code, 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. Notwithstanding anything in this Agreement to the contrary, the following provisions related to payments treated as deferred compensation under Section 409A of the Code, shall apply: (a) If (i) Employee is a “specified person” on the date of Employee’s “separation from service” within the meaning of Sections 409A(a)(2)(A)(i) and 409A(a)(2)(B)(ii) of the Code, and (ii) as a result of such separation from service Employee would receive any payment that, absent the application of this paragraph, would be subject to the interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be made prior to the date that is the earliest of: (i) six (6) months after Employee’s separation from service and (ii) Employee’s date of death. (b) Any payments that are delayed pursuant to Section 5.7(a) shall be paid on the earlier of the two dates described therein.
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Samples: Employment Agreement (Samson Oil & Gas LTD), Employment Agreement (Samson Oil & Gas LTD), Employment Agreement (Samson Oil & Gas LTD)
American Jobs Creation Act Provisions. It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). Accordingly, to the extent such potential payments or benefits could become subject to Section 409A of the Code, 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. Notwithstanding anything in this Agreement to the contrary, the following provisions related to payments treated as deferred compensation under Section 409A of the Code, shall apply:
(a) If (i) Employee is a “specified person” on the date of Employee’s “separation from service” within the meaning of Sections 409A(a)(2)(A)(i) and 409A(a)(2)(B)(ii) of the Code, and (ii) as a result of such separation from service Employee would receive any payment that, absent the application of this paragraph, would be subject to the interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be made prior to the date that is the earliest of: (i) six (6) months after Employee’s separation from service and (ii) Employee’s date of death.
(b) Any payments that are delayed pursuant to Section 5.7(a) shall be paid on the earlier of the two dates described therein.
(c) Sections 5.4(a) and (b) shall not apply to any payment if and to the maximum extent that that such payment would be a payment under a separation pay plan following an “involuntary separation from service” (as defined in Treasury Regulation Section 1.409A-1(n)) that does not provide for a deferral of compensation by reason of the application of Treasury Regulation Section 1.409A-1(b)(9)(iii). For the avoidance of doubt, the parties agree that this Section 5.7(c) shall be interpreted so that Employee will receive payments during the six (6) month period specified in Section 5.2(a) to the maximum amount permitted by Treasury Regulation Section 1.409A-1(b)(9)(iii).
(d) If a payment that could be made under this Agreement would be subject to additional taxes and interest under Section 409A of the Code, Company in its sole discretion may accelerate some or all of a payment otherwise payable under the Agreement to the time at which such amount is includable in the income of Employee, provided that such acceleration shall only be permitted to the extent permitted under Treasury Regulation Section 1.409A-3(j)(vii) and the amount of such acceleration does not exceed the amount permitted under Treasury Regulation Section 1.409A-3(j)(vii).
(e) No payment to be made under this Agreement shall be made at a time earlier than that provided for in this Agreement unless such payment is (i) an acceleration of payment permitted to be made under Treasury Regulation Section 1.409A-3(j)(4) or (ii) a payment that would otherwise not be subject to additional taxes and interest under Section 409A of the Code.
(f) A payment described in Section 4.4 of this Agreement shall be made only if such payment will not be subject to additional taxes and interest under Section 409A of the Code.
(g) No payment shall be made pursuant to Section 2.3 of this Agreement unless such payment would not constitute a deferral of compensation pursuant to Treasury Regulation Section 1.409A-1(b)(9)(v).
Appears in 3 contracts
Samples: Employment Agreement (Samson Oil & Gas LTD), Employment Agreement (Samson Oil & Gas LTD), Employment Agreement (Samson Oil & Gas LTD)
American Jobs Creation Act Provisions. It is the intention of the parties Parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). Accordingly, to the extent such potential payments or benefits could become subject to Section 409A of the Code, the parties 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. Notwithstanding anything in this Agreement to the contrary, the following provisions related to payments treated as deferred compensation under Section 409A of the Code, shall apply:
(a) If (i) Employee is a “specified person” on the date of Employee’s “separation from service” within the meaning of Sections 409A(a)(2)(A)(i) and 409A(a)(2)(B)(ii) of the Code, and (ii) as a result of such separation from service Employee would receive any payment that, absent the application of this paragraph, would be subject to the interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be made prior to the date that is the earliest of: (i) six (6) 6 months after Employee’s separation from service and (ii) Employee’s date of death.
(b) Any payments that are delayed pursuant to Section 5.7(a5.3(a) shall be paid on the earlier earliest of the two dates described therein.
(c) Sections 5.3(a) and (b) shall not apply to any Severance Payment or Other Employee Benefit if and to the maximum extent that that such payment would be a “short-term deferral” (as defined in Treasury Regulation Section 1.409A-1(b)(4)) or a payment under a separation pay plan following an “involuntary separation from service” (as defined in Treasury Regulation Section 1.409A-1(n)) that does not provide for a deferral of compensation by reason of the application of Treasury Regulation Section 1.409A-1(b)(9)(iii). For the avoidance of doubt, the parties agree that this Section 5.3(c) shall be interpreted so that Employee will receive Severance Payments and Other Employee Benefits during the six month period specified in Section 5.2(a) to the maximum amount permitted by Treasury Regulation Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii).
(d) In the event it shall be determined that any payment by the Company to or for the benefit of Employee (whether paid or payable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5.3) (a “Payment”) would be subject to the tax imposed by Section 409A of the Code or any interest or penalties are incurred by Employee with respect to such tax (such tax, together with any such interest and penalties, are hereinafter collectively referred to as the “409A Tax”), then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the remaining balance of the Gross-Up Payment after reduction for the amount of all taxes imposed upon the Gross-Up Payment (including any state and federal income taxes and 409A Tax imposed with respect to such taxes), is equal to the 409A Tax imposed upon the Payment. Any Gross-Up Payment due Employee shall be paid no later than the end of Employee’s taxable year following the taxable year of Employee in which Employee remits the related 409A Tax to the appropriate taxing authority.
(e) If a payment that could be made under this Agreement would be subject to additional taxes and interest under Section 409A of the Code, the Company in its sole discretion may accelerate some or all of a payment otherwise payable under the Agreement to the time at which such amount is includable in the income of Employee, provided that such acceleration shall only be permitted to the extent permitted under Treasury Regulation Section 1.409A-3(j)(vii) and the amount of such acceleration does not exceed the amount permitted under Treasury Regulation Section 1.409A-3(j)(vii).
(f) No payment to be made under this Agreement shall be made at a time earlier than that provided for in this Agreement unless such payment is (i) an acceleration of payment permitted to be made under Treasury Regulation Section 1.409A-3(j)(4) or (ii) a payment that would otherwise not be subject to additional taxes and interest under Section 409A of the Code.
(g) A payment described in Section 5.2 of this Agreement shall be made only if such payment will not be subject to additional taxes and interest under Section 409A of the Code.
(h) No termination of Employee’s employment shall be deemed to have occurred unless Employee “separates from service” within the meaning of Treasury Regulation Section 1.409A-1(h).
(i) Each installment payment of Severance Benefits and each periodic payment of any Other Employee Benefits shall be a separate payment to the maximum extent permitted by Section 409A of the Code and the Treasury Regulations promulgated thereunder.
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